Defending Personal Injury Attorneys in Criminal Investigations
For personal injury attorneys who are accused of defrauding their clients, the risks of disciplinary action pale in comparison to the risks of criminal prosecution. If you have been accused of fraud, forgery, theft, or any other crime, you could be facing the potential for years or decades behind bars.
As a personal injury lawyer, you are committed to fighting for your clients. You are a passionate and unwavering advocate, and you do your best to zealously represent your clients while staying well within the confines of your state bar rules and all relevant laws.
Unfortunately, this might not be enough to protect yourself against being charged with a crime. Although relatively rare given the volume of personal injury cases in the United States, each year some personal injury attorneys will find themselves suddenly thrust into the middle of criminal investigations. Typically, these investigations arise out of client allegations that the attorney mishandled the client’s funds, misappropriated the client’s funds, and/or settled the client’s case without their consent.
A Cautionary Tale: Personal Injury Attorney Faces 34-Count Felony Indictment
A case recently discussed in Attorney at Law Magazine involves a common scenario – although, in this case, the article suggests that the personal injury attorney knowingly and intentionally stole his client’s funds. According to the article, a personal injury attorney allegedly “swindle[d]” his clients out of more than $500,000 over a period of three years. The 34-count felony indictment against the attorney alleges that he targeted clients with poor English skills and settled their cases without their consent by forging their signatures. The attorney pled not guilty, and as of the time of writing the case remains pending. If convicted, he could face 20 years in prison.
However, regardless of the outcome of the attorney’s criminal trial, his reputation is very likely to be ruined. Several news outlets have published stories that include the attorney’s name, and the former clients who are accusing him of theft have no doubt told their side of the story to their friends and neighbors. While this may be somewhat of an extreme case, other personal injury attorneys who are accused of defrauding their clients could very well face similar consequences.
When a Client Accuses You of Forgery, Fraud, or Theft
Personal injury practice is unique in a number of respects. As a personal injury attorney, your clients are individuals from diverse backgrounds, and you provide representation on a contingency-fee basis. Your clients are seeking legal representation because they have to – not because they want to – and this means that they often have little or no time (or interest) in learning about what they can rightfully expect from your legal representation. As a result, personal injury practice is high-risk and high-reward; and, despite their best efforts, it is common for personal injury attorneys to run into issues with their clients.
But, there is an extremely thick line between a client’s lack of understanding (whether or not due to being provided with inadequate information) and a personal injury attorney’s criminal conduct. Questions regarding fees are particularly common, and it has been widely reported that lack of communication is the primary complaint amongst clients against attorneys in all areas of practice. However, these types of questions can, and generally should, be resolved by reviewing the parties’ engagement agreement – and the client should have little choice but to acknowledge that the fees to be charged were clearly set forth at the outset of the engagement.
Of course, this does not stop clients from complaining. Particularly within the context of a personal injury case – where the client may have been relying (rightfully or wrongfully) on the receipt of a substantial settlement – if a client does not achieve the outcome he or she expects, emotions can run high. Clients are often quick to take to social media to express their frustrations; and, in many cases, clients will go directly to the local bar association or law enforcement authorities without first discussing the issue with their attorney.
When this happens, even wholly-unsubstantiated allegations can create significant problems and cause severe reputational harm.
Defending Against Criminal Allegations as a Personal Injury Attorney
So, you have a dissatisfied client, and that client has made the decision to accuse you of a crime. What is at risk? What do you need to do to protect yourself?
While this is a fairly unique scenario, defending against criminal allegations of fraud, forgery, or theft as a personal injury attorney is ultimately no different from defending against these types of allegations under any other set of circumstances. You potentially have a number of defense strategies available, and you need to execute these strategies effectively in order to avoid dire consequences.
When dealing with criminal allegations from a client, the first potential line of defense will usually be to pull out your engagement agreement. Client complaints that rise to the level of criminal allegations almost always involve money; and, as a personal injury attorney, your engagement agreement should clearly specify both: (i) when you are entitled to payment; and, (ii) in what amount (or what percentage) you are entitled to retain as fees for your legal services.
Records of communications between you and your client are likely to be key evidence as well. In many cases, producing the full history of relevant communications will show that the client either overlooked or misunderstood something you said – contrary to his or her allegations of being kept in the dark. Of course, voluntarily producing any records to state or federal authorities is not a matter to be taken lightly; and, before you produce records of communications in your defense, you would be well-advised to speak with an experienced criminal defense attorney.
What if the evidence is not in your favor? What if you made a mistake and signed a document without authorization or retained funds that rightfully belonged to your client? In this situation, you will need to shift your defense strategy, but you could still have several full or partial defenses available. As your criminal defense counsel, our attorneys will examine all potential defenses, and we will develop a cohesive strategy focused on protecting your freedom and, ideally, your right to practice.
In addition to defenses focused on innocence, potential defenses in cases involving criminal allegations of forgery, fraud, and theft include:
- Lack of Criminal Intent – If you made an honest mistake, or if prosecutors cannot prove that you intentionally withheld funds or otherwise defrauded your client, this may be sufficient for you to avoid a criminal conviction. However, this type of defense needs to be asserted with extreme care, as admitting to unintentional misconduct could still lead to civil litigation or administrative enforcement action.
- Constitutional Violations – As the subject of a criminal investigation, you are entitled to all pertinent protections afforded by the U.S. Constitution. If a law enforcement officer or prosecutor has violated your constitutional rights, we may be able to use this to your advantage.
- Burden of Proof – In addition to arguing lack of intent and seeking to have evidence excluded due to constitutional violations, there are various other ways that our attorneys can work to prevent the prosecution from overcoming its burden of proof. If evidence of any single element of an alleged offense is lacking, then a conviction is unjustified.
About Oberheiden, P.C. | Nationwide Criminal Defense
Oberheiden, P.C. is a criminal defense law firm that operates on a nationwide scale. In addition to our in-house criminal defense attorneys, we also work with a network of local counsel, and this allows us to serve clients across the country. If you are facing state or federal criminal charges in relation to your personal injury practice, we can provide competent, local representation, and we can use our attorneys’ collective experience to build and execute a strategic defense.
Another unique aspect of our practice is that we place particular emphasis on representing attorneys and other licensed professionals. As attorneys ourselves, we understand the unique and severe ramifications of facing criminal charges in relation to your practice. However, we also have substantial experience fighting criminal charges on behalf of licensed professionals across the country. We can use this experience to your advantage, and we can rely on the insights gained from prior cases to advise you regarding all potential defenses and outcomes.
At Oberheiden, P.C., we offer:
- Experience Defending Attorneys and Other Professionals Against Criminal Charges – All of our defense lawyers have significant experience representing attorneys and/or other professionals in criminal cases.
- Experience in Civil and Administrative Matters (Including Disciplinary Proceedings) – Our practice also encompasses defense representation for civil and administrative matters, including disciplinary proceedings.
- Prior Prosecutorial Experience at the State and Federal Levels – Several of our attorneys are former state and federal white-collar prosecutors, including former senior prosecutors with the U.S. Department of Justice (DOJ).
Contact Us for a Free and Confidential Consultation
If you are a personal injury attorney who is facing charges of criminal misconduct, we encourage you to contact us promptly to discuss your case. To speak with one of our senior criminal defense attorneys in confidence, call 214-692-2171 or request a free initial consultation online now.