Robbins: Who the heck is representing me? | VailDaily.com

Robbins: Who the heck is representing me?

I run into this more than I ever would have thought.

Clients are sometimes confused about who is representing them.

While it may seem pretty straightforward — and most times is — where the confusion may come in is where a criminal matter is concerned. So let’s parse this out a bit.

First off…

Law is comprised of two big “buckets.” Bucket No. 1 concerns civil law or private disputes between “individuals.” With a sharp eye, you will notice that I placed the word individuals in quotes. In actuality, an “individual” — or more accurately, a “person” — may consist of a flesh-and-blood being or any legal entity. At law, a corporation, limited liability company, partnership or other legal association is considered to be a “person.” Thus, civil disputes are those between legal “persons” in that broader conception. A person (or entity) may sue another person (or entity). In any event, the dispute is private and the result of the litigation — if, in fact a suit is ultimately brought — is “damages” in the form of money or in the court compelling one or more of the parties to take certain actions.

The criminal bucket

The other big bucket of the law is criminal law. Criminal law, as you might expect, concerns itself with crimes or other offenses against “the people.” A crime is an offense against civic order and rather than consisting of a private brouhaha, in legal theory anyway, a crime is an offense against us all.

In a civil dispute, Person A may sue Person B. In a criminal action it is The People who prosecute the action against the accused and do so in the name of all. While the ultimate outfall of a civil action is, most times, a matter of who pays whom for a wrong allegedly committed, in criminal matters, the outfall of a guilty verdict is in the form of punishment, either in the form of incarceration, a fine, or sometimes both.

While there may be debate about whether the role of our jails and prisons is to punish and/or to rehabilitate, there is little doubt that the role of the criminal courts is to levy consequences when one is convicted of a crime.

The foregoing raises another issue and common misperception. In a criminal matter, a conviction means that the accused was found guilty. If he or she is not convicted, the verdict is “not guilty.” There is never a finding that the accused was innocent, only that the evidence was not sufficient to sustain a finding of guilty. Relatedly, in a civil action, one is not found either guilty, not guilty or innocent. Instead, one prevails or doesn’t, “innocence” or “guilt” being no part of a civil trial.

 What then of the title of the column?  Where does the confusion lie?

It goes like this …

In a civil matter, it is pretty clear. You come to see me with your matter. I agree to help. We enter into a representation agreement which lays out clearly that: I am representing you in this particular matter and how costs and fees will be assessed. Most times, legal fee agreements are based upon the attorney’s hourly rate plus costs (and the rate of paralegals, etc.). Other times, the fee may be “fixed” (or set), or else “contingent.”

A contingent fee is one that is earned — or not — based upon the attorney’s success in resolving the matter in controversy, whether by negotiation, mediation or litigation. Most commonly, contingent fee arrangements occur in “tort” or injury cases.

In civil matters, presuming you can come to an agreement with the attorney of your dreams, you are free to hire whomever you please. If you like Attorney A and the two of you can work out a mutually agreeable arrangement, Attorney A will be in your corner.

In criminal matters, it is different. Say you are the victim of an alleged crime. Say further that, following investigation, the district attorney’s office determines to file charges against the alleged accused and moves forward to take the matter to trial. Although you will be aided by the usually quite capable victim’s assistance coordinator (or other person with a similar title depending on your jurisdiction), the decision to file an action or not, and precisely which deputy district attorney will be handling your case, is beyond your control.

In Colorado, the district attorney for each district is elected by the voters every four years. The office holder is limited to two terms and so the district attorney may not serve more than eight consecutive years. The DA appoints and hires various deputies, and the cases are doled out in accordance with internal policies. Which deputy is assigned to your case is largely out of your hands. Needless to say, some deputies are quite good, others, not so much.

When you are the victim of an alleged crime, it is The People and The People’s representative, the DA, who represents your interests, not a lawyer you otherwise might choose. Of course, if you are the defendant, you get to pick your lawyer if you can afford one. If not, one will be appointed for you.

Finally…

Often, when one is the victim of an alleged crime, he or she will consult with a private attorney in addition to working with the DA’s office to prosecute the action. While this may be useful, and may help the victim have a more informed voice with the DA’s offices, at the end of the day, it is the DA’s office who will prosecute the matter, who will try the case, and who will represent your interests in the criminal proceeding.

So, who the heck represents you?

In a criminal matter, it is the district attorney and his/her deputies. In civil matters, you are free to pick and choose to find the perfect fit.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.