So you’re charged with Criminal Sexual Conduct in Michigan, you’ve been arraigned, and you’re out on Bond with a piece of paper stating that you have two fast approaching Court appearances, the Probable Cause Conference (PCC) and then the Preliminary Exam. What happens now?
It’s time to handle the issue of getting legal representation - who will be the lawyer to defend you as you fight Criminal Sexual Conduct (CSC) charges?
If you are indigent, you should be entitled to the services of a Court Appointed Attorney. If you are not indigent or have access to financial assistance from others, you may find yourself navigating the uncertain waters of searching for and interviewing candidates for perhaps the most important job you’ll ever hire someone to perform in your entire life.
[Hiring an attorney if you’ve learned of an investigation concerning allegations of CSC made against you, but before any charges are filed, is an intelligent choice but not the subject of this article. This article addresses when you are already charged. Also note that the words "attorney" and "lawyer" are used interchangeably for all practical purposes.]
Michigan Criminal Sexual Conduct charges are both serious and unique within the world of criminal defense. Serious because the highest charge, First Degree Criminal Sexual Conduct is punishable by up to LIFE, possible consecutive sentencing, Sex Offender Registration, and other collateral consequences like mandatory lifetime electronic monitoring (tether). Even the lesser degrees are similarly serious. They are unique because they involve issues and challenges which lawyers defending other criminal charges may not face.
At Prain Law, PLLC, we concentrate on defending those accused of Michigan Criminal Sexual Conduct charges, but the purpose of this article is not designed to steer you our way; regardless of who you may end up consulting with or hiring, the information below will be helpful to you.
Here are 6 tips and other things you may not be aware of when seeking a Michigan Criminal Sexual Conduct Lawyer….
REACH OUT TO LAWYERS YOURSELF.
It is totally normal that it feels uncomfortable and inconvenient to face the prospect of having to hire a lawyer. For this and other reasons, supportive friends and loved ones may want to help reach out to potential lawyers for you, especially if they may offer financial assistance. But the bottom-line is, a lawyer evaluating a case really needs to speak to the actual potential client, not just someone else. As a prospective client, reaching out to a lawyer yourself, you are entitled to the attorney-client privilege. Additionally, even though it may eventually become necessary for the lawyer to communicate with others (i.e., if they are offering financial assistance, etc.), there is still only so much headway that can be made with someone other than the accused themselves.
Even if your parent, sibling, spouse, or friend is willing to contribute unlimited funds to hire a particular lawyer they happen to prefer, lawyers are still ethically bound to ensure that you, as the potential client, consent to that arrangement and that other essential understandings are in place. So while initial contact by the accused themselves may not always be possible or desirable (i.e., when incarcerated, etc.), if you are an adult and out on Bond, in our opinion, it’s best and most efficient for you to make initial contact with lawyers you may hire first.
HAVE YOUR INFORMATION READY.
There will eventually be a point in your Criminal Sexual Conduct case where “discovery,“ meaning reports and other items and possible evidence, will be produced for you and your lawyer to evaluate. For now, the information you have may be limited. But a lawyer offering a consultation is going to want to know exactly what all of your charges are, who is accusing you, and some other basics. There are four main Degrees of Criminal Sexual Conduct in Michigan:
- First Degree Criminal Sexual Conduct, MCL 750.520b (based on alleged "sexual penetration")
- Second Degree Criminal Sexual Conduct, MCL 750.520c (based on alleged "sexual contact")
- Third Degree Criminal Sexual Conduct, MCL 750.520d (based on alleged "sexual penetration")
- Fourth Degree Criminal Sexual Conduct, MCL 750.520e (based on alleged "sexual contact")
It is also helpful to understand what your Bond amount and terms are, the dates for all upcoming Court appearances, and other basic information Defendant's are made aware of by the time of Arraignment. It is surprising how many people are not aware of these things. But knowing this information will help the lawyer to quote the most accurate fee and describe the CSC Court progress as helpfully as possible. Not knowing these things shouldn't necessarily stop you from making contact as time is of the essence, but if you don’t have this information handy when you call, it may result in delays in moving forward.
CONSIDER A LAWYER'S EXPERIENCE IN CRIMINAL SEXUAL CONDUCT CASES.
If you needed a specialized medical procedure, you may have the benefit of knowing that the doctor performing it is specifically Board Certified in that particular discipline within the much broader field of medicine generally. But in Michigan, that is not the case for lawyers. There is no difference between the State law license held by a lawyer practicing wills and estates and a lawyer practicing criminal law. Essentially, the only limitation on an a lawyer's ability to practice within a certain discipline of law is the requirement that they simply be competent in that area of law.
Criminal defense is just one “slice" of the entire "pie“ of law practice in general, which also includes personal injury, elder law, estates, family law, and everything else under the sun. On top of that, even within the "slice" that represents criminal defense, Criminal Sexual Conduct defense is only one smaller sliver of the criminal defense "slice." Some lawyers practice many different areas of law, and there is nothing wrong with this.
But you may also want to consider whether someone practicing in numerous different areas of law is the best fit when your needs are very specific. If you were restoring a 1967 Plymouth GTX, then assuming it’s an option for your, you may well prefer the crew from the TV show “Graveyard Cars” and their expertise in restoring Chrysler cars exclusively over another shop restoring all kinds of cars. The reasons for that are obvious.
We often say “A good lawyer is a good lawyer.“ That’s true because handling someone’s legal case with excellence really comes down to a matter of personal integrity, work ethic, and dedication. So under the right circumstances, even a lawyer who has only limited experience in Criminal Sexual Conduct casescould do a great job. A lawyer may switch practice areas or take on a new legal issue they've never handled before by doing the necessary learning to become competent in that area.
But it is also true that Criminal Sexual Conduct cases have many special issues and idiosyncrasies that only become apparent through repetition and success. For example...
- Does the lawyer have experience and understanding of the law dealing with prejudicial “other acts“ allegations that sometimes come up?
- Will the lawyer simply make the assumption that if there is evidence your accuser has falsely accuse someone of sexual assault in the past, you'll automatically be allowed to bring that up at trial, or do they actually know to file the necessary Motion so that vital opportunity is not lost?
- If the case necessitates offering evidence of instances of the accuser's past sexual conduct with you or others to properly advance the Defense theory of the case, does the lawyer realize that they need to file a special Motion within 10 days of the Arraignment on the Information (AOI) under Michigan’s “Rape Shield” law, MCL 750.520j?
- Has the lawyer repeatedly stood in front of Juries across the State, opened up their mouth, and successfully defended people's liberty when the State is trying to take it away Based on CSC allegations?
- Has the lawyer gone to battle in Jury trials based on both allegations made by minors and adults, under all kinds of different circumstances?
- Does the lawyer understand the unique balance between aggressively defending someone and not being a jerk?
- Does the lawyer have knowledge and experience in the fundamentals of research on memory, suggestibility, and disclosure of sexual abuse allegations?
- Is the lawyer skilled and experienced and cross-examining the familiar experts the Prosecution calls in CSC cases?
- Do they have experience in properly and effectively calling expert witnesses to testify for the Defense?
These are just a few examples, and experience in CSC cases is something you’re going to have to consider on an individual basis. Those and other idiosyncrasies of CSC cases are not really things they teach in Law School. On the other hand, just because a lawyer has handled many CSC cases does not necessarily mean that they're the best option for you.
CLICK HERE to read about Brian J. Prain's recent jury verdict of NOT GUILTY of Michigan First Degree Criminal Sexual Conduct charges in July, 2024.
The point here is, this is something you may want to consider, and unfortunately you won’t have the benefit of being able to rely on any professional licensing authority to give you assurance that a particular lawyer is, in-fact qualified in defending criminal cases in general or even beyond that, any specific type of criminal case like CSC.
IF YOU DO CONSIDER A LAWYER WITH A CONCENTRATION IN CSC, CONSIDER THIS . . .
If you see things leading you to believe a particular lawyer or law firm has a concentration in a certain types of criminal case, you might want to make sure your understanding is accurate. You may need need to ask a lot of questions to inform yourself and gauge this. For example, if you needed your computer fixed and are looking for the right repair technician, you may not understand the technical jargon they use, but your basic gut intuition may well guide you to nevertheless realize that perhaps one candidate is obviously more knowledgeable than another.
Also worth mentioning in this day and age of internet marketing, it's possible that like any other business, a lawyer targeting certain types of clients might have a website holding themselves out in a manner suggesting that they concentrate uniquely on Criminal Sexual Conduct cases when in reality they’re more of a general practitioner - they may have other, completely separate websites for different types of criminal charges, like drunk, driving, drug cases, etc. If you were only looking for one of those subspecialties, you might land on one of their sites and think that that’s all they do because you’re not seeing all their other, similar websites for other types of criminal charges. That is a different approach from a lawyer who simply has one website openly listing all of their different practice areas in a single place.
WHEN IT COMEST TO LAWYER FEES, UNDERSTAND WHAT TYPE OF FEE YOU'RE BEING QUOTED
Eventually, there’s that one topic that both the lawyers and the potential clients probably dislike dealing with: What’s it going to cost to hire?
A responsible lawyer will clearly explain their fee structure. It can be a big mess if there is a misunderstanding.
Imagine you hire an a lawyer and a few months down the road, you receive a letter stating that you owe another large sum of money when you thought you fully paid up-front. Confused, you call their office I’ll need to be told that the money you paid previously was put into a trust account to be billed against an hourly rate, and that it’s all been exhausted because the lawyer (or lawyers) at their firm have already worked X amount of hours. Considering the hourly rate of some lawyers these days, you can see where this is going. Now, you’re being told that if you don’t essentially “refill the tank,” then the lawyer may have to ask the Court to withdraw from your case...and you still need legal representation.
The point here is that there are lawyer fee agreements that are structured that way, and if a lawyer fails to make sure the potential client understands what they’re signing up for, depending on their resources, they may just end up in the same situation as someone who left on a cross-country drive with only one tank of gas - better off if they never started on that journey. And when you consider that it may be uncertain how many times this “refill the tank“ scenario will repeat until the case is concluded, it’s almost like signing a "blank check."
Without the proper understanding, what initially sounds like a really low-ball fee could be just the tip of the iceberg.
We're leaving the practice of Prain Law out of this article, but by way of example since we can't speak for anyone else, we’re doing Criminal Sexual Conduct cases over and over and over again. Therefore, we feel comfortable setting fixed-fees so that the client knows what the job will cost at each stage right from the start, and if there happen to be any variables based on things we cannot know yet, the client will know that up-front as well.
In other words, because Prain Law is experienced in CSC cases, we feel confident to estimate, to a reasonable degree of certainty, how much work will be involved. And if the actual work required happens to exceed that amount, we, not our client, bear the burden of any uncertainty.
WHEN YOU DO HIRE A LAWYER, KNOW WHETHER YOU'RE (EFFECTIVELY) HIRING THAT LAWYER
It may surprise you to learn that there are situations where people meet with a lawyer (say, the top lawyer in the firm) thinking that they’re hiring this person specifically, only to never really have any meaningful interaction with them again throughout the case.
Sadly, some firms apparently seem to make a practice of often sending other lawyers to Court, or having other associate counsel "stand-in" for them. Again, we can’t speak for anyone else, but it’s our opinion that when you hire a particular lawyer,they should be the lawyer going to Court for you, talking with you throughout the case, representing you at trial if there is one, etc. In other words, we think that when someone is hired to be your lawyer, they shouldactually be your lawyer.
So, if this is a concern for you, you may be well advised to ask about this upfront.