When a Lawyer’s Lousy Representation Can Result in a Windfall to the Defendant in a Criminal Case

Recently a client charged with serious federal narcotics crimes came to me with a tale of woe: his prior counsel who had been representing him during the investigation phase of the case had incredibly been simultaneously representing a witness who was cooperating against him in the same case.  When my new client was indicted he came to me, terrified, because a) his former lawyer knew all about his criminal background including the client’s culpability in the case for which he had just been indicted; and b) he was not an American citizen despite living in America since he was two years old; therefore, a conviction to any of the narcotics charges against him would result in his deportation back to a country he had not visited since he left as a child.  The client was desperate and without hope: his former lawyer had advised him to either cooperate with the government or, if deported, to attempt to illegally sneak back into America – two choices the client was unwilling to do. Within 15 minutes of meeting this client and hearing his tale of woe, I told him “I know you won’t believe this but what your former lawyer did to you may end up being your only chance out of this mess.”  Eleven months later, despite facing initially a minimum five to 40 years in prison pursuant to 21 U.S.C. § 841(b)(1)(B) and definite deportation, my client received just a 30 month sentence to a Travel Act charge (a non-deportable offense) and received a recommendation for the Residential Drug Abuse Program (RDAP) which could result in his release from prison in just over a year.  Moral to the story: as any of the best New York federal drug and narcotics attorneys know, when given lemons in a case make lemonade.  

The Legal Issue And Our Strategy

Beyond the prior defense attorney’s obvious conflict of interest was our belief that prior counsel may have taken confidential information from our client while representing him and passed it to the government via his other, cooperating witness client.  The lawyer had made it a point, even when admitting he had a conflict to the client and could not longer represent him, to ask him about other criminal activity he had been involved with when it was clear he no longer should have had any such interest.  As such, the government’s evidence against our client could have been contaminated by this ill-gotten information.

Once we learned of the obvious conflict of interest we alerted the government.  After prosecutors indicated that our client’s prior counsel had lied about the extent of his prior representation of our new client when he was simultaneously representing him as well as a cooperating witness against him, we began work on a motion to the court requesting a hearing into the extent of the damage done by the prior attorney.  In order to make such a motion, however, we needed to prove our point: that prior counsel had provided legal advice to our client while simultaneously representing a cooperating witness against him.  Incredibly, our client had not only kept meticulous, contemporaneous notes of every last interaction with his attorney over the prior year but had maintained texts and emails from him.  In addition, because he had sensed that the attorney had been acting in a corrupt manner (at one point the attorney during a meeting with our client had insisted that the client lift up his shirt to in an attempt to ensure that he was not taping the meeting) he was very careful to record every last detail of their frequent contacts.  The information and evidence he had collected – some of it impenetrable – left no doubt that prior counsel had been using our client in an inappropriate and unethical manner which could implicate our client’s constitutional right to counsel pursuant to the Sixth Amendment.

Prior to submitting the motion to the court, however, we sent a draft to the government.  Clearly wanting no part of such a potentially ugly hearing which could have exposed their cooperating witness as well as his lawyer’s double dealing with the government and our client, the prosecutors fairly sought a way out: after we consulted with immigration counsel, we offered the government a deal in exchange for our dropping the issue.  Our client would be permitted to plead guilty to a single Travel Act count pursuant to 18 U.S.C. § 1952.  Instead of the five year minimum sentence for which he was indicted, our client would now be facing a maximum sentence of five years – plus the crime of conviction did not trigger deportation.  An extremely decent and fair federal prosecutor agreed to these terms.

The Result

On top of that, at sentencing last month the judge’s gave our client 30 months in prison along with the RDAP recommendation, a large downward variance from the sentencing guidelines range of 57-60 months our client faced. Considering the huge break our client had already received by being permitted to plead to a non-deportable offense with significantly less prison exposure than to what he was indicted for, the 30 month sentence (with RDAP factored in, perhaps half of that) was a minor miracle.  That it was all done for a good and decent client who deserved a break – and a lawyer who wouldn’t stab him in the back – made it all the more sweet.  Here is how he described his experience in an Avvo review.

Conclusion

Being indicted federally for a narcotics offense is scary enough, especially when one faces a mandatory minimum sentence and deportation upon conviction.  Having a defense lawyer stab you in the back does not help matters.  Nevertheless, if one hires the right attorney and works hard enough, any disastrous set of circumstances can be overcome when it comes to a criminal case.  Call the federal New York criminal lawyers at the Law Offices of Jeffrey Lichtman at (212) 581-1001 to discuss your case today.