Dealing with difficult clients

From time to time I take on the legal duties, and responsibilities. In spite of detailed and patient interviewing and fact collection, it is easy to become sideways with the expectations of paying clients. They may have expectations that the attorney should act as a personal hired gun to perform at their beck and call and also act in a way that they believe or have become certain sure how a lawyer should conduct their case. When this becomes apparent to me, I bring the client in and discuss these unusual expectations. Even when you are clear at the beginning , your consultation terms may have fallen on deaf ears. I clearly restate my case goals and how I intend to achieve them. If you are not able to comprehend each others communications, you are at a serious impasse. At that point I recommend, they may want to seek new counsel unless, both can resolve their communication interferences and expectations. This most often happens in criminal defense matters. Family members tend to want to insert themselves into the case and constantly steal your time with what ifs that have no factual basis. Rather than fall into me and the law conversations, get an understanding from your client who to share information with. Family members can be a resource in rural counties. I have been most successful when I clearly describe the problem, clearly state what I can do, Remind them I may need to retain subject matter experts and thoroughly investigate the facts and speak to witnesses. I do not leave interviews to investigators. While they are trained professionals, I am not able to gage veracity of a witness from someone else’s interview.

Search in vehicle incident to arrest

When you are stopped for a motor vehicle violation, the Police officer often is making an on the spot decision on whether or not to search your vehicle based upon possible probable cause factors or just because. Sometimes the owner of the vehicle will give the officer permission to search. This is usually not recommended to give Law enforcement unfettered access to your automobile. One problem is cars are mobile. Police Officer(s) will believe you will thus transport the evidence not yet located or discovered (if there even isn’t any) to another location to destroy. So there is reluctance to let you go and a challenge to search and find something. Should the officer pull you out of the car after the stop and handcuff you it is arguable that now he needs a warrant absent any plain view discoveries. This is true especially if one officer has searched the car with limited results and now another officer of dog is conducting a more extensive search.

. This matter is controlled by the Mississippi Supreme Court case of White v. State, 735 So.2d 221 (Miss. 1999). White involved two male siblings and a vehicle search of a truck. Elwood White was sitting on the driver’s side with his brother William White standing near the passenger side of the vehicle. White, 735 So.2d at 222 (¶3). William White was approached by an officer and arrested for violation of Crystal Spring’s open container law at which point he was handcuffed. Id. Elwood White was subjected to a Terry-type frisk by another officer which revealed three-bullets in his shirt pocket but no weapon.
However, a handgun was discovered in the truck, the handle of which was in plain view. Id. Elwood White was then placed in handcuffs. The second officer subsequently returned to the truck for an additional search and discovered a medicine bottle which was lying under a jacket. The bottle was opened by that officer and found to contain a substance believed to be crack cocaine. Elwood White was then arrested for possession of a controlled substance. Id. The Mississippi Supreme Court found that under these circumstances, “Once the Whites had been handcuffed and secured, the search incident to arrest of either party ended.” This does not preclude the ever called for inventory search if the vehicle is impounded but at that point there is not reason not to secure a warrant.

Unreasonable searches continued

This is a continuation from yesterdays thoughts on search incident to arrest and the wingspan idea covered under Chimel v California. One factor considered is likely hood of evidence destruction or exigent circumstances. These are over used by both law enforcement and prosecutors and should always be challenged. There is no compelling justification for law enforcements routinely searching beyond the room where an arrest occurred. nor does law enforcement deserve the unfettered and often unchallenged rationale that the arrested could reach for it. First I would want to discover if the arrested was handcuffed while this search of the room occurred. I am talking about beyond incident to arrest and wingspan such as opening drawers and claiming plain view. Once one is handcuffed, officers safety while important does not trump U. S. constitutional rights, Fourth amendment and Mississippi constitutional protections. Also once the arrested is no longer in room what is the hurry? Get a warrant if you want to open drawers and look under objects much less move them. In almost 100 per cent of the cases the facts of a warrantless search are wrapped with a sloppy fact pattern and. or lazy law enforcement.

Protection against unreasonable searches in home and hotel,

In my criminal practice I often have questions and issues concerning perceived unreasonable searches of cars, hotel rooms, and personal carry items(tote bags). While the law is very clear, the facts of each search situation is what ultimately affords the constitutional protections. We all remember the television series Adam -12. It was produced by Jack Webb and was an made to be an operational show about Los Angeles Police Department in the 1960s-1970s. The character I have focused on is Sgt. McDonald. He was the supervisor for the patrol units and helped them answer many search questions. If Sgt. Macdonald said the search was in a gray area, it meant that a Judge would determine the outcome of valid search or not. The first place I begin my inquiry is was this a search incident to arrest or something else. Absent unusual and special circumstances most searches incident to arrest may be lawful under Mississippi and United States decisions. However, the inquiry does not end there. Chimmel v California, 395 U.S. 752 (1969) has been undisturbed authority concerning warrantless searches incident to lawful arrest and protection generally extends to the area considered to be in possession or immediate control of the person arrested. This limits search incident to arrest to what is often referred to as wingspan of the arrested. Nevertheless, hotels are a different situation and it may be a matter of timing and prepayment of room bill and expenses to gain full protection from warrantless searches. The immediate take away is the facts will determine if the search was valid or required a warrant. Do understand that the officer is going to follow his trained procedures (right or wrong) at the time of arrest and challenging him or her with law often ensures the search will occur just to show you they can do it. More to come another day

Over Pledged Collateral (PMSI & NPMSI)

Often during the course of a Chapter 7 or Chapter 13 bankruptcy filing it becomes apparent to the attorney either through interviewing the client or while conducting electronic UCC searches with the Secretary of State’s office the same collateral has been pledged to several secured creditors. Often time the collateral pledged is not entirely worth the value of the loan amount. Sometimes the creditor will overstate the value of the collateral to make the loan. Whether or not the debtor is unwittingly complicit in this process is a hard to determine from the facts. Before determining which creditor has the superior lien (first UCC filing on the collateral) I want to know if the creditor helped purchase the collateral and they have a purchase money security interest or if it is something else such as a non purchase money security interest. Sometimes the collateral started out as purchase money security interest yet became a non purchase money through the creditors actions . Again this is a fact driven issue. If it is a strait purchase money security interest, the debtor is either going to have to pay for this debt, surrender or negotiate some other value and repayment. If the debt is non purchase money security interest, I often recommend my clients abandon the collateral after analyzing if its value if disproportionate to the debt (undervalued). A three hundred dollars television is not worth a $1,500.00 loan repayment. Unless their is a family heirloom or something with tremendous sentimental value it may be best to surrender the collateral. I use this analysis process in a Chapter 7 and Chapter 13. Nevertheless in a Chapter 13 we can often lower the interest rate to five per cent (.05% vice the 39% that many creditors ( Loan Companies) charge.

Bankruptcy and Disclosure

Quite often potential clients are hesitant to disclose certain facts to their attorney involving present and future assets. As part of the bankruptcy planning process this omission can and will cause problems once discovered. Clients may insist that they were not asked a specific future asset question or in cases of bank accounts, they may have plain forgotten they were on a joint account for a grandchild 25 years past and the account is still active. Properly disclosed these small assets can be explained with little or no problem. If discovered during the bankruptcy process by either the United States Trustee of the Chapter 7 or 13 Trustee it can lead to a great deal extra work and stress. Bank account and other financial account information is often directly tied to ones social security number. This number is how a bankruptcy debtor is often identified, in spite of what is printed on ones social security card. While this particular bankruptcy problem can often be resolved without criminal action by the United States federal government authorities, it tends to disrupt the bankruptcy client’s peace of mind. If one can remember that bankruptcy is a matter of disclosure and that most personal assets can often be protected, or that a particular case may require more extensive pre bankruptcy planning than others. Keep the faith