Steve Palmer [00:00:00]:

All right, here we are. Lawyer Talk podcast. They don't teach you that in law school. We've got Steve Palmer here, Troy Henriksen, our resident law student. Not for much longer, though. Another year, another year, another year. I don't know what we're doing. They don't teach you that in your first year of law practice? Maybe.

Steve Palmer [00:00:13]:

I don't know. Anyway, we had the idea here is we cover stuff that law students don't necessarily get in law school. So this is like you work for me in a real life practice where real life people come in and who have real life problems and real life money or real life lack of money. And, you know, we have all these things that happen and you can sort of get to see the other side of it. I really think. I always said this. I really think law school should be two years with a mandatory externship for a year, because your third year might be better spent learning what they don't teach you in law school.

Troy Hendrickson [00:00:45]:

Yeah, I would agree. I think I'm only taking one mandatory class this entire year. So that's.

Steve Palmer [00:00:50]:

So you just have electives.

Troy Hendrickson [00:00:51]:

Yeah.

Steve Palmer [00:00:52]:

Like sports law and stuff like that.

Troy Hendrickson [00:00:54]:

Yeah, I think cannabis law. So that's. Look, it's emerging law.

Steve Palmer [00:00:59]:

It. Yeah, it's emergent for sure. I want to talk about something. We actually got into it a little bit. We didn't get into it, but we had a discussion about this yesterday, and we had a client that came in and wants to pursue a course of legal action that when I look at it, it just doesn't make sense to do it.

Troy Hendrickson [00:01:21]:

No, it didn't. And it was a very, very risky play.

Steve Palmer [00:01:26]:

Yeah. So let's create a hypothetical. And it's not. I thought about a different hypothetical because I don't want to bring up this one particular, but somebody comes to us and they want to. They've already pled guilty, they had a plea deal, and they want to change their plea and go fight the case. I get this a lot, actually. We hear, you know, we do a ton of appellate work, and we hear this. I want to.

Steve Palmer [00:01:45]:

I want to withdraw my plea. And generally the standard for that, so anybody knows, is if before sentencing, courts should freely grant that request after sentencing, they almost never do. But in reality, here in Ohio, they hardly ever grant that request either way. But we've. We've had a few of these lately. But say somebody wants to withdraw their plea, and we. The first thing I. What's the first thing I always tell people? See, if you remember.

Troy Hendrickson [00:02:13]:

I feel like you dial it Back to the original charges in the case and be like, let's go over that. Like, do you understand the punishments that you are now, like, applicable for? If you lost that?

Steve Palmer [00:02:23]:

Yeah. If you withdraw the plea, you're going back to. You're going back to square one. It's not like you withdraw the plea and get a better deal because you don't like the sentence. Most of the time. You withdraw your plea, you're going back, and now you got to fight the whole case.

Troy Hendrickson [00:02:34]:

Yeah. And it could be a lot worse.

Steve Palmer [00:02:35]:

It could be a lot worse. So you look, you're changing from the frying pan often into the fryer. And, you know, a lot of times we. I've represented thousands of people over the years. There's lots of plea agreements, and most of them, if not all of them, I would. In fact, all of them, I would say we did this for. I don't want to say most all of them. We would.

Steve Palmer [00:02:54]:

We did this for a good reason at the time. You know, there's a reason we entered a plea, and it's because the case itself, we didn't feel great about fighting it and winning it. And maybe the government didn't feel about great about fighting and winning it on their side. So there was a compromise, and we decided, all right, so we're not going to go for the full Monty from the government standpoint and from the defense. We're not going to win the case outright, but we're going to get some lesser sentence or lesser conviction. So we plea. Defendant comes back and says, I changed my mind. I didn't want to plea and say, they did it with another lawyer.

Steve Palmer [00:03:29]:

They come to me and they say, look, this was stupid. I should never have pled. I didn't want to do it. I wanted my day in court. The first thing I always say is, all right, let's say that you win and you withdraw your plea. I almost ask people something like, what do you think happens from that? And they sort of stop. They don't. Haven't thought it through.

Steve Palmer [00:03:46]:

And we always tell them, look, what happens is you have to now go try the case that for whatever reason you thought wasn't a good idea when you entered the plea. Now, that's not always the case. Sometimes clients would say, look, there was a language barrier. I didn't understand what was going on. Or perhaps there was a consequence to my plea, like immigration that I hadn't considered, and now I don't have a choice. I'd rather just fight the case and lose than be deported. Whatever that is, it would, you know, then there might be a halfway decent reason. But a lot of times people haven't thought it through.

Steve Palmer [00:04:18]:

So then we get to this ethical dilemma that they don't. That. I don't know. If they teach in law school, maybe they would, maybe they don't. But the ethics are this. Let's say somebody says to us, I want to withdraw my plea. I don't care what the consequences are. I want my day in court.

Steve Palmer [00:04:36]:

And we look at the case and we're saying, all right, there are two eyewitnesses, a confession, and it's on videotape.

Troy Hendrickson [00:04:45]:

It's a pretty slam dunk case for the state.

Steve Palmer [00:04:47]:

Yeah. So, like, we're looking at. It's like, look, under no reasonable circumstance, I can't think of any possible way we can win this case. If you successfully withdraw the plea, and then the defendant may say, well, can't you get a lesser sentence? And, you know, maybe even we pick up the phone and say, hey, prosecutor, worked with you for 20 years on different cases. Now, I represent Mr. Doe here. He wants to withdraw his plea. Do you have any interest in giving him a lesser sentence? Go f yourself.

Steve Palmer [00:05:12]:

I hate that guy. He's the worst SOB I've ever had. I'm not offering him anything else. I didn't want to offer this in the first place, but I did. He got a gift, and now he's looking a gift horse in the mouth. Tell him to go bug off, Mr. Client. Talk to the prosecutor.

Steve Palmer [00:05:25]:

There's no chance you get a better sentence. Well, can't. You just can't. So what do we do?

Troy Hendrickson [00:05:31]:

Well, if they're still pushing on withdrawing the plea, the next step would be to break down to them and have a very long and meaningful discussion on how terrible of an idea this is and how you are most likely going to lose and basically just air it out that you think it's a terrible idea.

Steve Palmer [00:05:48]:

I don't care. I want to do it anyway. I don't care what it costs. I'll pay you whatever it costs. What do I do?

Troy Hendrickson [00:05:53]:

Well, here. This is the part where I feel like ethically already did your part. Like, hey, I've explained to this guy how terrible of an idea this is. No matter what, he wants to push through with it, he wants to pay.

Steve Palmer [00:06:04]:

For it, and he wants to exercise his right to a trial. So, look, let's. Let's sort of break it down, because it can go either way. I mean, you've heard me say thousands of times to clients who we do a ton of appellate work, and a lot of times clients will come in and they want to appeal something, and they, you know, I've talked lots on a different part of the. What's the appeal side of this? About when an issue isn't correctly preserved, or we can't raise it, or there's some problem with it, or there's no way the law's against us. And clients say, I don't care. I'm sitting in prison. I want to appeal it anyway.

Steve Palmer [00:06:38]:

I just want. I want to do it. I always tell people, look, I have to sleep at night. I have to be able to put my head on a pillow. This is not just about making money for me, you know, because on the one hand, you could say, look, you're. You want to pay me money, I'll do whatever you want. I'll be your. I'll be your worker, you know, I'll do it.

Steve Palmer [00:06:59]:

On the other hand, I think people are. I think clients often are in a vulnerable position, particularly if they're facing a sentence they don't want to face, or they're already serving a sentence they don't want to serve, or it's a loved one for somebody, and they say, look, we just want to do anything we can. I'm looking at it and I'm saying, all right, you can do anything you can, but there's got to be a limit. There's got to be some outer limit to that where you can't. We can say, we're going to do this, but you're not going to win. There's no circumstances that you're going to win. There's not a chance, not even a snowball's chance in hell that you can win. The snowball's never even going to leave my hand.

Steve Palmer [00:07:34]:

You can't win. There's nothing that can happen here that's good other than you give me money to do work that's meaningless. And they still say, I don't care. Like, where, when's enough's enough? I mean, I don't have all the answers, but this is worthy of discussion.

Troy Hendrickson [00:07:51]:

I mean, there's always a chance. I always. I always think of Dumb and Dumber, where he's like, you're telling me there's.

Steve Palmer [00:07:55]:

A chance, so you're telling me I got a chance, right?

Troy Hendrickson [00:07:58]:

So there is a chance. So it's like, yeah, but, you know.

Steve Palmer [00:08:01]:

Reasonably academically scholarly, experientially, whatever the term, like, you know, that there's no chance. So you can say, yeah, there's always a chance. But yeah, that's. That's not a. Let's just say that's a disingenuous view of it. So there isn't really a chance. And I'll give you one more. I don't care.

Steve Palmer [00:08:21]:

If you don't do it, I'm gonna pay somebody else to do it.

Troy Hendrickson [00:08:25]:

Well, in my head, if he's gonna pay an attorney to do it, might.

Steve Palmer [00:08:28]:

As well pay you.

Troy Hendrickson [00:08:29]:

Yeah, I feel like the money's better in our pocket.

Steve Palmer [00:08:32]:

Well, let me tell you how I sort this out. And it's not. First of all, there are rules. There's ethical rules.

Troy Hendrickson [00:08:40]:

I haven't taken that class yet, so don't hold me to that.

Steve Palmer [00:08:42]:

That's all right.

Troy Hendrickson [00:08:43]:

I will take it this fall.

Steve Palmer [00:08:45]:

The code of responsibility, basically. And this comes up, I think, more in civil cases, but we're not allowed to pursue frivolous claims. I'm not allowed as a lawyer to pursue claims that are frivolous. Now, that's more of like, we don't want to in the civil arena, you know, if you're doing things to harass others or you're doing things to just, you know, what we call these habitual litigators, you know, these frivolous. These people go file thousands of lawsuits against people. You know, that's frivolous litigation. But, you know, so we can get around that. I think often in the criminal realm, it's like, how is it frivolous to say, I want to withdraw my plea and fight my case and exercise my constitutional rights? Or let's say in the.

Steve Palmer [00:09:28]:

What we're talking about, you say there's always a chance. I guess if there's a reasonable good faith argument that we could say, look, we understand what the law is, but we think the law should be different, so we're going to challenge that aspect of it. Maybe that gets you around, that requirement. But a lot of times the criminal defendants are different than civil lawyers. The civil lawyers who just sue people because, look, they're sitting in prison. So sometimes I sort this out by saying, all right, Mr. Client, here's the deal. You want to pursue this? I am telling you that I don't think there is any chance you can win.

Steve Palmer [00:10:03]:

They say, I'm going to do it anyway. Yeah, but you can't win. I don't care. I want to do it anyway. I want to try it. If you don't do it, at least I'm going to get somebody else who will try. And I guess I'll start by saying this There are lots of lawyers who will take your money and go away. They'll take your money.

Steve Palmer [00:10:15]:

Sometimes they'll take your money and not file anything. We get that all the time. Because they realize there's really nothing to file. And sometimes they'll take the money and file it and not look back and never have a conversation. And you can take advantage of vulnerable people even if you offer them a hint of hope. I don't offer people a hint of hope. In fact, I try to do the opposite. When I talk to clients in situations like this where it's a long shot upon a long shot, blind and backwards, left handed.

Steve Palmer [00:10:42]:

I would say, listen, if you pay me money, do not think you are getting out of prison. If you pay me money, do not think that you win, do not think you get a new trial, do not think that just because you're paying me money that somehow this is going to work out in your favor. And then they say, oh yeah, I know, I know. And I say, no, you don't, you don't. Because I know where you are. I know what you're saying. You're doing this because you have a hope. And don't.

Steve Palmer [00:11:08]:

I almost go overboard stressing that this is a long shot, that I don't think we can win. So then you would ask, I would think, why do it then in the first place? And here's where maybe there's this area where I think people sitting in a prison cell, they need something, they need hope, they need something. And sometimes hope is just something they feel like they're doing something. And I think that has a value. I think even if it's a long shot, they can at least focus on something. They can try. And I've gotten my head around that lately, but only if I have these conversations. Often I disclose this in writing and not even often.

Steve Palmer [00:11:48]:

I always send a, a message or an email or get it in writing to my client. Look, here's the score, here's what's going on. You can pay me, but you're only paying me for my time. You're not paying me for a victory or even a hope of victory because I, you know, I don't think we can win. But if you want to pursue it, I think there's a legal basis at least to make an argument. And if there's no legal basis to make the argument, I won't do it because I've got these pesky ethics rules and I have to sleep in.

Troy Hendrickson [00:12:13]:

Pesky ethics?

Steve Palmer [00:12:15]:

Yeah, pesky ethics rule and say, don't pursue Frivolous litigation. But that's sort of how I sort this out. Now back to our hypothetical. Somebody wants to withdraw their plea and it's dumb to do.

Troy Hendrickson [00:12:31]:

I just feel like you've disclosed it enough. They have a constitutional right. They're going to find a attorney. I mean, you've laid it all out for them. I just.

Steve Palmer [00:12:39]:

Just because one lawyer will do it doesn't mean another one should. And I have let people walk time and time again and say, listen, you can pay. Here's the other one we get all the time. Sort of along the same lines. I got it recently. What if I paid you $50,000 more? Could you get it transferred to another jurisdiction? And I'm like, look, I quoted a fee. I quoted my client a fee to do a job. Sometimes it's hourly, sometimes a flat rate.

Steve Palmer [00:13:08]:

I made up the number 50. What if I paid you more is usually what it is. I am doing everything I can for that money. There's not any more I could do for extra money. Unless I say, look, this is something we didn't contemplate. There's another thing we can file. We should do it. And that's going to take more time and cost more money.

Steve Palmer [00:13:24]:

That's one thing. But it's not like I'm not doing that thing because I didn't get paid enough. So it's so easy to take advantage. I think in the criminal game, particularly, it's so easy to take advantage of people who are desperate for help in facing what they perceive as hopeless consequences. So it's like, I think we have to be careful. I think I have let people walk and say, look, I can't do it. I won't do this for you. And I think we had this conversation maybe last week.

Steve Palmer [00:13:52]:

I'm not a bus.

Troy Hendrickson [00:13:54]:

Yeah.

Steve Palmer [00:13:54]:

I don't have to stop and pick up this case and do it just because my. My prospective client thinks it's a good idea. In fact, many times I shouldn't. And this is one of those where we have to fight this internal conflict. I always say lawyers do this. Criminal defense lawyers operate for money, ego and cause in some measure. And sometimes one's more important the other. You know, sometimes I do things because I think it's.

Steve Palmer [00:14:21]:

It's a cause I want to champion. Sometimes I do things because I've been paid, but I really don't. You know, it's like I just do it because it's my job and I have to. Sometimes I do it because it's something that I'm interested in. And I want to go make a name for myself. Whatever. You know, it's like the. Anybody who's telling you differently is wrong.

Steve Palmer [00:14:37]:

I mean, those are the. Those are things that motivate us, but we have to be able to set those aside for the ethics. We have to be able to set whatever is motivating us aside, often the greed and money, and say, Look, Mr. Client, I get it. You want to do this, but I'm not doing it for you. I'm not doing it for you because I don't agree with that decision. And if you want to go and somebody else is going to do it, so be it. But just because you pay one person doesn't mean I should do it, because it's still a dumb idea whether the other lawyer is going to do it or not.

Steve Palmer [00:15:11]:

I have to put my head down on the pillow at night and go to sleep and be able to wake up knowing at least I did the right thing. And I didn't take money that I shouldn't have taken, not because I wasn't going to do the work, but because it wasn't going to get this guy anywhere. Or if it did get him somewhere, it was at a place that's worse than where he is now. I don't think they're having that conversation in law school.

Troy Hendrickson [00:15:32]:

No, they're not. But I also haven't taken ethics, so. But I imagine it's not.

Steve Palmer [00:15:35]:

Well, they might, they might. But this is like, I think sometimes in ethics class in law school, you have these scenarios, but you never. They always present themselves in a. In sort of a sideways way in the real world. Like, they come in, you're like, yeah, but I got payroll. And I got this, I got this, I got this. But we have to keep our eye on the ball here and always do what's right, do what's right with the court, do it's right with a client, and do what's right with ourselves. So we can say, look, we're human.

Steve Palmer [00:16:07]:

We can say, look, not this time, I'm not going to do it. And that's where we ended up on that situation. And it was an interesting conversation. You and I had that conversation afterwards. And it's interesting because on the face of it, it's like, well, let's take it out of the law for a second. I'm just curious. Say it's a contractor, and the contractor goes to the old lady that says, look, I just. My stairs have been squeaking for 30 years.

Steve Palmer [00:16:30]:

I finally want them fixed, and I've got all the money in the world to pay you, and you're looking at this thing saying, look, I could rip out the entire staircase. I could rebuild the whole second floor of this house, and it might fix the squeak, but it's stupid. It's not going to add any value to the house. It's not going to do anything for that. It's like, there are people who do it.

Troy Hendrickson [00:16:49]:

I mean, if she's willing to pay. If she's willing to pay, I'm like, yeah.

Steve Palmer [00:16:53]:

But on the other hand, should you. I don't know. What do you guys think? Leave us a comment. Shoot us a question. I'd be very curious to hear everybody's comments on this one, because would you do it? Would you fix the stairs? Would you withdraw the plea? Would you pursue the thing that is not in your client's best interest, even though he's telling you, I want to do it anyway? Dan, the torpedoes full speed ahead. Check us out. Lawyertalkpodcast. Com.

Steve Palmer [00:17:15]:

Leave us a comment. Shoot us a message in the socials. They don't teach you that in law school. Off the record, on the air till now.