Dan got back from court after 5 p.m. tired, hungry and with a splitting headache. The note from his office manager, Tom Barron, was no aspirin. Carson Romero was arrested by Officer Woodson in the afternoon while Dan was in court. He was charged with A&B by means of a dangerous weapon, to wit: the automobile that he was accused of crashing into Julie’s car in the first incident; and worse still, with possession with intent to distribute a Class A substance within a school zone. He was booked at the Bellvale Police Station and released on $2500 cash bail which his father, Joe Romero posted. He left for home with his father and his mother, Rosemarie Romero, who was in tears. He is scheduled to be arraigned in Bellvale District Court in the a.m. According to Tom’s note, this squall line is moving to meet Dan at 5:30, about 15 minutes from now.
Dan goes into the bathroom down the hall. He throws cold water on his face, combs his hair, and otherwise steels himself for what is certain to be a tough client conference, once the reality of what Carson is facing sets in.
The office doorbell rings. Joe Romero and Rosemarie swoop in, not pausing for pleasantries. Carson, looking baleful, follows behind. Dan leads them to his conference room.
Joe and Rosemarie Carson are clearly worried, distraught. Carson, with a redwood-size chip on his shoulder, is glowering across the table, and starts right in:
“Listen to me, this is a crock. I didn’t hit that girl’s car. She smashed into me, she was so bombed. And the drugs, that’s a laugh. She brought those to the party in a film container and was trying to talk me into taking them, but I refused. I don’t do drugs. Now she’s the one who’s caught and she’s trying to pin it on me.”
“No, you listen to me. I don’t want to hear anything from you now about what happened, what didn’t happen, and why what they said you did couldn’t have happened. First we’re going to discuss what the criminal charges are and what they mean. Then we are going to discuss my services and financial arrangements to pay for them. Tomorrow, after you’re arraigned and I can speak to you alone without losing your attorney-client privilege, you’ll tell me what happened. Is that understood?”
“First of all, you are charged with two felonies: 1) A&B dw and 2) possession with intent to distribute drugs — a Class A substance. Both of these charges carry serious criminal penalties including the possibility of significant jail time. The A&B charge has a maximum penalty of 10 years imprisonment, or 2 1/2 years in jail, which is the more likely maximum for you, assuming you have no serious priors. The drug offense is potentially much more serious. Because the house where the sales were said to take place is down the street from a school, it falls within a special statute protecting school zones from drug trafficking, which increases the penalties substantially.”
“I didn’t have any drugs with me and I definitely wasn’t selling any. But doesn’t it matter that it was just a coincidence that the house is down the street from a school?”
“No, it doesn’t matter. The Legislature, in its wisdom, has decided to make it irrelevant whether the sales were somehow connected to the school or selling to kids or whatever. If you sell drugs within 1000 yards of a school you have committed this crime, regardless of why you were in the school zone, and the sentencing guidelines for this start with serious time even if you have a clean record. And apart from what you are facing in the criminal justice system I presume you have been suspended from Bellvale Academy for just the drinking that took place at the party.”
Rosemarie Romero broke in. “That’s right,”, struggling to hold back tears, “And they say he won’t graduate high school with his class if he is found guilty of the criminal charges. He will be expelled.”
Next Joe Romero, the dad. “Look Dan, we know it’s serious. We’re beside ourselves. Can you help him?”
“Yes. But I’ll need his cooperation and not the wise guy attitude he’s sporting tonight.”
“You’ll get that I can assure you. Or he’s going to be dealing with me. I’ve had enough of the trouble he has caused us. Look at his mother crying. This is going to end.”
“Now because there are civil aspects to some of what has gone on — the auto property damage to the car for example , and the possibility of personal injury claims from Julie Chandler– in addition to the criminal charges, we will need to enter into two different types of fee agreements. I’ll handle the civil matters on a straight hourly fee basis at my customary hourly rate which is $300 per hour. You and Rosemarie will be my clients for that. I’ll need a $1500 retainer for that which will be deposited to my Clients Funds account to be applied against billings. With respect to the criminal matters, my understanding is that Carson turned 18 in September, so he is an adult now. And in any event, for the criminal matters he is technically my client. For the criminal matters I will need a nonrefundable retainer of $5,000 which will cover all pretrial work up to and including any plea or other resolution short of trial. If there is a trial required we will have to speak again about another nonrefundable retainer before I prepare the case for trial.”
“That’s fine so long as you get him out of this mess. I’ll write the retainer checks right now”, taking out his check book and writing the checks.
“I can’t begin to know how best to represent him until I hear what he has to say, and I learn what else may be in store for us when I get the prosecution’s discovery materials. In this business there are no guarantees. But you’ve known me a long time Joe, and you know that no lawyer has ever represented your interests more honestly or capably.”
“That’s true. The ones before you were money grubbers and didn’t care about anything else. You’ve always done right by me and treated me fairly.”
“Carson and you and Rosemarie will get the same here. You can count on that.”
“I’ll prepare two fee agreements as I said, one hourly and the other for the criminal work on a flat fee basis plus expenses with nonrefundable retainers. I will also need you and Rosemarie and Carson to sign a joint representation letter acknowledging that there may be conflicts of interest between you and Rosemarie on the one hand, and Carson on the other. And if those conflicts make it unfair or unethical to represent you both I may have to withdraw from representing one or the other or possibly both.”
After the client conference Dan opened the Romero case file using SJ’s thorough, easy- to- complete file opening form:
Dan is really beat and wants only to get home for some dinner and a nightcap or two to take the edge off. After he gets back to the office from the arraignment tomorrow he will prepare fee agreements and transmittal letters to the clients using SJ’s forms (which include clear and concise flat fee, hourly, contingent and mixed fee agreements and transmittal letter forms). He will also prepare a joint representation disclosure and consent letter, which he will tailor to the specific facts of this case involving potential conflicts of interest between Joe Romero and his wife, Rosemarie, on the one hand, and Carson the son on the other.
[N.B. I recommend to my readers that they follow the parallel Romero case blog of Mark Bernstein (Eastgate Systems, Inc.), the developer of Tinderbox. The focus of Mark’s blog is on the mapping features and uses of Tinderbox (which are incorporated in Summary Judgment™) for analyzing complex fact patterns that are unfolding over time.]
Copyright © 2009 Stephen M. Winnick, Esq. All rights reserved.