Building Trust in the Pursuit of Justice: A Toolkit for the Public Defense Attorney

BUILDING TRUST JUSTICE

IN THE PURSUIT OF

A TOOLKIT FOR THE PUBLIC DEFENSE ATTORNEY

Matthew Clair, Ph.D., Michael O’Key, & Bakr Shehadeh¹

BUILDING TRUST IN THE PURSUIT OF JUSTICE: A TOOLKIT FOR THE PUBLIC DEFENSE ATTORNEY

Copyright© 2023 Matthew Clair

All Rights Reserved

ABSTRACT

This toolkit offers public defense attorneys and their offices insights and strategies to enhance trust, communication, and collaboration with their clients. Drawing from recent social science research and a brief tour of innovative practices in public defense organizations across the United States, the toolkit aims to foster a more just approach to criminal legal representation that aligns lawyers’ legal expertise with clients' unique needs, hopes, and expertise. We offer additional reading for attorneys and other professionals interested in strengthening their commitment to representing indigent clients with dignity, respect, and competence.

THE IMPORTANCE OF TRUST IN ATTORNEY-CLIENT RELATIONSHIPS

Page 3

BUILDING TRUST IN INDIVIDUAL RELATIONSHIPS

Pages 4-5

BUILDING TRUST AT THE ORGANIZATIONAL LEVEL

Pages 6-7

EXAMPLES OF PROMISING PUBLIC DEFENSE PROGRAMS AND INITIATIVES

Pages 8-9

ADDITIONAL RESOURCES

Page 10

ENDNOTES Pages 11-12

REFERENCES

TABLE OF CONTENTS 01 02 03 04 05 06 07

Page 13

THE IMPORTANCE OF TRUST

Building a trustworthy relationship through a deep understanding of clients’ needs and hopes is essential for attorneys representing indigent clients. This toolkit provides practical strategies for criminal defense attorneys and public defense offices seeking to enhance trust, communication, and collaboration with clients from marginalized racial and socio-economic backgrounds.

Indigent clients, compared to their more privileged peers, are more likely to have experienced social adversities in their lives, including poverty, racial discrimination, substance use disorders, and trauma ² Many of these adversities may have been worsened through police abuse and other forms of punitive legal system contact.³ Consequently, indigent clients have many reasons to distrust the legal system, even their own defense attorneys. In addition, indigent clients may have novel insights and expertise that could benefit lawyers in their advocacy.

It is common for public defenders to report that their clients mistrust them, and many indigent clients report mistrust of their lawyers.⁴ Social scientists have documented the importance of trust and trustworthiness in facilitating communication and collaboration, especially under conditions of uncertainty, such as the condition of being charged with a crime.⁵ It is important for defense attorneys to prove their trustworthiness to their clients in order to facilitate an effective attorney-client relationship that strives toward a just outcome. Trust not only shapes a client’s satisfaction with the legal process but also encourages their informationsharing and engagement, which can aid lawyers in investigation and advocacy.⁶

Clients’ mistrust of their defense attorneys has been shown to arise from various sources, including feeling unheard, experiencing discrimination and microaggressions from their lawyer, feeling pressured to plead guilty, negative experiences with the broader law, and feeling they had no choice in their assigned counsel.⁷ Indigent clients have a range of life experiences, so each of these sources may or may not inform a specific client’s mistrust. Nonetheless, recognizing each of these sources of mistrust can help defense attorneys begin to cultivate trustworthiness in their clients’ eyes.

The following parts of this toolkit offer practical strategies for mitigating sources of mistrust in order to facilitate attorney-client communication and collaboration, with the aim of improving indigent clients’ legal outcomes and experiences. We begin by describing practical strategies for building trust in individual relationships, followed by a section describing organizational-level strategies for improving attorney-client relationships in public defense offices, and concluding with a brief tour of promising programs and initiatives from public defense organizations around the United States.

BUILDING TRUST IN INDIVIDUAL RELATIONSHIPS

Depending on the representation model, some defense attorneys may meet with a client only once (e.g., in horizontal representation models), whereas other defense attorneys will meet with their client multiple times throughout the course of the pretrial process which could last from weeks to months to years. This section provides practical tools for building trust in each interaction with a client, no matter the representation model

The first interaction with a client is most important for building a relationship of mutual trust Whenever counsel attaches (usually at, or just prior to, arraignment), clients are often experiencing distress and anxiety. Such distress is most acute for clients held in custody, who may be worried about whether/when they will be released and whether their loved ones know where they are located ⁸ At this first interaction, many clients will want to share all sorts of details about their case and their lives, whereas many lawyers will want to focus on the specific legal issues that will facilitate an effective bail argument

At the first meeting with a client, we suggest the following strategies to align lawyers and their clients during this critical stage:

Introduce yourself: Clearly state that you are their assigned lawyer and state your first and last name. Begin by asking how they are feeling.

Listen: Listen to the clients’ feelings in the moment, even if they are sharing information that may not seem relevant to the bail hearing or immediate legal arguments Demonstrating care and interest builds the foundation for a trustworthy relationship. Moreover, novel insights and expertise from clients can be revealed when taking the time to listen.

Ask: Ask a client for information that will aid in making immediately relevant legal arguments. For instance, at arraignment/bail, asking conventional questions about the person’s job, whether they have family support, whether they are willing (and able) to abide by potential pre-trial conditions, whether they believe the complaining witness does not want a stay-away order, etc.

Share: Share information about how the legal process will work, when they should return to court, what pre-trial services they should be in contact with, and your contact information. In offices where there are social workers and investigators, sharing their contact information may also be useful to the client.

Many offices follow a vertical representation model, whereby the same lawyer works with a client throughout their case. Other offices follow a horizontal representation model, whereby specialized lawyers or teams of lawyers and other professionals work with a client at each unique stage of the legal process

In both models, successive meetings with clients that instill trustworthiness will require the following:

Recall who they are: When meeting again with a client, recall details about their personal lives that are important to them, even if they do not seem relevant to the legal case. Ask about their family members, the job they were applying for, etc. Recalling these details can spark open conversations that not only facilitate trust but could also aid in advocating for your client to be released, have conditions removed, or even have their case dismissed.

Regular updates: Update clients routinely, not just when you see them in court. Indeed, contacting clients prior to their next court date can prepare them for the process and may reduce the potential for failures to appear. During these updates, be sure to “Listen” and “Ask” (as in the first meeting). Also be sure to explain any legal procedures or informal practices that may be unfamiliar, such as motion hearings or the practice of defense attorneys having “friendly” conversations with prosecutors during plea negotiations.

Incorporate family and friends: When legally appropriate and the client desires it, incorporate family, friends, and loved ones as supporters of your client. Loved ones may be supportive by showing up to court, helping to translate complex legal information, and providing transportation and housing that could help your client succeed.

Once a case is resolved, lawyers in trustworthy relationships with their clients can offer to stay in contact. If a client desires it, staying in contact with a client after case resolution can help them navigate collateral consequences of their legal case and more effectively reintegrate into society. For instance, lawyers can offer to help their former clients seal their cases after successful completion of probation.⁹

BUILDING TRUST AT THE ORGANIZATIONAL LEVEL

Defense offices—not just the individual lawyers who work within them—have an important role in cultivating a trustworthy relationship with individual clients, as well as with broader communities disproportionately susceptible to criminal legal system contact.

Defense offices, especially public defender organizations, typically employ staff beyond lawyers. Investigators can help collect evidence in defense of clients. Social workers can help to assist clients in accessing services, such as housing or health care, which has become increasingly common in offices that practice holistic representation models.¹⁰ And paralegals help to collect clients’ contact information and maintain important records to facilitate efficient workflow.

These staff members each have a role to play in developing trust with clients— each of their contacts with clients should build, rather than erode, the attorney-client relationship. Thus, staff members should interact with clients in a similar manner as lawyers, especially during their first meeting, by introducing themselves, listening, asking, and sharing. In successive meetings, they should similarly recall who clients are and incorporate family and friends when appropriate

Many offices do not have the resources to employ investigators, social workers, and paralegals. Such offices could leverage examples from the next section of this toolkit as they work to advocate for more resources from local funding sources or grant opportunities. In the meantime, these offices could consider whether lawyers can learn from, and incorporate, some of the tasks traditionally assigned to investigators, social workers, and paralegals Alternatively, hiring volunteer interns such as undergraduates at a local college or interested community members could also help fill the gap.

In the absence of much-needed funding for new staff positions, defense offices can implement additional strategies to improve attorney-client relationships. These include:

Establish a bank or list of referral networks in their communities. Such referrals could include service providers who may be able to assist indigent clients in accessing housing, cash assistance, and the like.

Implement the “structured shadow method.” Criminologists Christopher M. Campbell and Kelsey S. Henderson developed the “structured shadow method,” a process of systematically assessing a lawyer’s quality of communication with a client.¹¹ Offices could have lawyers observe each other’s meetings with clients, relying on the structured shadow method’s checklist to help colleagues understand where they can improve their communication styles with clients. Checklist items include whether the lawyer: allowed for client involvement, explored the client’s needs, treated the client with respect, minimized jargon, explained next steps, and counseled the client on the lawyer’s plans for their case

Build preexisting relationships with communities. Lawyers and other staff members could start radio shows or conduct know-your-rights trainings to help reduce the number of people arrested and brought to court in the first place.¹² Engaging in these tasks could also go a long way to proving trustworthiness for community members who do end up being forced into court.

Finally, defense office administrators should consistently advocate for hiring more staff positions and increasing salaries (to parity with prosecutor’s offices). Collaborating with researchers or community organizations could prove useful in supporting these efforts through the creation of research reports or fact sheets that convince funders of the need for more defense resources.¹³

PUBLIC DEFENSE PROGRAMS & INITIATIVES

04

Public defense organizations across the United States have developed innovative programs and initiatives meant to improve trust in the attorney-client relationship, with the aim of improving clients’ outcomes and experiences. Yet, these initiatives are rarely catalogued or shared with other offices We spotlight three of these promising initiatives, based on a non-systematic review of 15 programs across the country.¹⁴

Overall, the existence and successes of these 15 programs appears to depend on the following:

Engagement and collaboration with system-impacted local communities in design and implementation;

Collaboration across government and non-profit organizations; and Initial and often, continued reliance on private and/or public grants.

Neighborhood Defender Service: Pre-Arrest Services and Community Outreach Programs

A growing number of public defense offices across the country have recognized the importance of engaging with clients prior to arraignment and even prior to arrest. Founded in 1990 in Harlem, New York, the Neighborhood Defender Service (NDS) operates at least two pre-arrest/community outreach initiatives as part of their holistic defense model.

First, for people who have just been arrested or who suspect they are about to be arrested, the NDS offers pre-arraignment and pre-arrest services, respectively. These services include early interviewing of clients and witnesses and negotiating with law enforcement, which the organization believes can “dramatically improve the outcome of a case.”¹⁵ Second, well before the arrest of an individual community member, NDS engages with members of the community through visits to community institutions (e g , schools and social services agencies) and by offering information about legal rights and resources.¹⁶

PUBLIC DEFENSE PROGRAMS & INITIATIVES

Comal County, Texas, Court Appointed System: “Client Choice” Program

In 2015, with the assistance of grant funding from the Texas Indigent Defense Commission, the Comal County District Court implemented a two-year program that would allow indigent clients to choose their court-appointed lawyers.¹⁷ The program was rooted in the idea that, like privileged people, disadvantaged people should be able to choose their lawyers and that allowing “client choice” would encourage court-appointed lawyers to work harder to establish reputations as trustworthy advocates for their clients.¹⁸

To implement client choice, magistrates in the county’s jail were instructed to advise indigent defendants that they could either choose their own lawyer from a list of available attorneys or have the court choose an attorney for them.

Defendants were given up to 48 hours to choose their lawyer, relying on information about lawyers from a “one-page form containing information about their professional backgrounds.”¹⁹ In addition, the plan took into account a common problem in instilling attorney-client trust: language barriers

“Defendants who only speak and understand Spanish will be afforded the opportunity to select a defense lawyer who is fluent in Spanish.”²⁰

San Francisco Public Defender: MAGIC and Clean Slate Programs

The San Francisco Public Defender (San Francisco, California) has established innovative programs meant to improve relationships with the communities it serves and ensure former clients’ successful re-entry into society In order to prevent youth contact with the criminal legal system, the office, in collaboration with community stakeholders, established the MAGIC (Mobilization for Adolescent Growth In Our Communities) initiative in 2004. MAGIC and later iterations of the initiative work with faith-based organizations and schools to disrupt “the school to prison pipeline” through meetings, connecting youth to services, and leisurely community events.²¹

To continue to support clients who have already been in contact with the criminal legal system (and may be vulnerable to future contact), the office founded a Clean Slate Program in 1999.²² The program assists former clients in expunging their records and obtaining Certificates of Rehabilitation. They offer online and walk-in services.

ADDITIONAL RESOURCES 05

American Bar Association (ABA): Offers guidelines, ethical codes, and resources for legal professionals, including materials on attorney-client communication.

National Association of Criminal Defense Lawyers (NACDL): Provides resources, training, and advocacy support for criminal defense attorneys.

National Legal Aid & Defender Association (NLADA): Provides resources, training, and advocacy support for lawyers representing indigent clients in civil and criminal cases.

Community-Oriented Defender Network: Created in 2003, a network of over 100 public defender organizations focused on training, policy change, and racial justice.

National Participatory Defense Network: A network of community organizations, such as Silicon Valley De-Bug, engaged in the principles of participatory defense, which seeks to organize community and family to assist people as they work with their lawyers and experience court processing.

National Courtwatch Network: A network of organizations and individuals who organize local community volunteers to observe and report what’s happening in their local courts. Some programs, like Court Watch NYC, have collaborated with public defender collectives.

ENDNOTES 06

¹Department of Sociology, Stanford University. Corresponding author: Matthew Clair (mclair@stanford.edu)

²Clair, Matthew. 2020. Privilege and punishment: How race and class matter in criminal court. Princeton University Press.

³Bell, Monica C. 2017. "Police reform and the dismantling of legal estrangement." The Yale Law Journal: 2054-2150.

⁴Clair, Matthew 2021 "Being a disadvantaged criminal defendant: Mistrust and resistance in attorney-client interactions." Social Forces 100, no. 1: 194-217.

⁵Schilke, Oliver, Martin Reimann, and Karen S. Cook. 2012. “Trust in social relations.” Annual Review of Sociology 47: 239-259.

⁶Boccaccini, Marcus T., and Stanley L. Brodsky. 2002. "Attorney–client trust among convicted criminal defendants: preliminary examination of the attorney–client trust scale." Behavioral sciences & the law 20, no. 1‐2: 69-87.

⁷Campbell, Christopher, Janet Moore, Wesley Maier, and Mike Gaffney. 2015. "Unnoticed, untapped, and underappreciated: Clients' perceptions of their public defenders." Behavioral Sciences & the Law 33, no. 6: 751-770; Clair, Matthew. 2020. Privilege and punishment: How race and class matter in criminal court. Princeton University Press

⁸See examples of such concerns from the “Stories” section of the Court Listening Project, an archive of system-impacted people’s experiences in the San Francisco Bay Area: https://www.courtlisteningproject.org/

⁹Pp. 125-6 in Clair, Matthew. 2020. Privilege and punishment: How race and class matter in criminal court. Princeton University Press.

¹⁰See, for example, the Bronx Defenders: https://www.bronxdefenders.org/holisticdefense/

¹¹Campbell, Christopher M., and Kelsey S. Henderson. 2022. "Bridging the gap between clients and public defenders: Introducing a structured shadow method to examine attorney communication." Justice System Journal 43 (1): 26-52.

ENDNOTES 06

¹² In the 1970s, the Roxbury Defenders Committee in Boston, Massachusetts, spearheaded such initiatives. See: Washington, Harold R., and Geraldine S. Hines. 1983 "‘Call My Lawyer’: Styling a Community Based Defender Program." Black LJ 8: 186.

¹³ For example, Silicon Valley De-Bug and other community organizations have helped public defense offices better represent their clients. See: Jayadev, Raj, and Janet Moore. 2022. "Participatory Defense as an Abolitionist Strategy." In Transforming Criminal Justice: An Evidence-Based Agenda for Reform. Edited by Jon B Gould and Pamela R Metzger

¹⁴ For access to this non-systematic review, which was conducted by co-author Bakr Shehadeh, please email Matthew Clair (mclair@stanford.edu). Our review captures only programs and initiatives that are documented publicly through organizational websites, news reports, or academic research.

¹⁵ https://neighborhooddefender org/services/pre-arrest-services/

¹⁶ https://neighborhooddefender.org/community-outreach/

¹⁷ https://www.innovatingjustice.org/sites/default/files/documents/ComalCountyClientChoice.pdf

¹⁸Burnett, Catherine 2019 "Choosing Choice: Empowering Indigent Criminal Defendants to Select Their Own Counsel." S. Tex. L. Rev. 60: 277.

¹⁹ https://tidc.tamu.edu/IDPlanDocuments/Comal/Comal%20District%20Court%20Client%20Choice%20Implementation%20Plan.pdf

²⁰ https://tidc.tamu.edu/IDPlanDocuments/Comal/Comal%20District%20Court%20Cl ient% 20Choice%20Implementation%20Plan.pdfSee also the idea that Black defendants should be able to choose a Black lawyer: Hoag, Alexis. 2021. "Black on Black representation." NYUL Rev. 96: 1493.

²¹ https://momagic.org/about/

²² https://sfpublicdefender.org/services/clean-slate/

Bell, Monica C. 2017. "Police reform and the dismantling of legal estrangement." The Yale Law Journal: 2054-2150

Boccaccini, Marcus T., and Stanley L. Brodsky. 2002. “Attorney-client trust among convicted criminal defendants: preliminary examination of the attorney-client trust scale.” Behavioral Sciences & the Law 20 (1‐2): 69-87.

Burnett, Catherine. 2019. "Choosing Choice: Empowering Indigent Criminal Defendants to Select Their Own Counsel." S. Tex. L. Rev. 60: 277.

Campbell, Christopher, Janet Moore, Wesley Maier, and Mike Gaffney. 2015. “Unnoticed, Untapped, and Underappreciated: Clients’ Perceptions of their Public Defenders.” Behavioral Sciences & the Law 33 (6): 751–70.

Campbell, Christopher M., and Kelsey S. Henderson. 2022. “Bridging the gap between clients and public defenders: Introducing a structured shadow method to examine attorney communication.” Justice System Journal 43 (1): 26-52.

Clair, Matthew 2021 “Being a Disadvantaged Criminal Defendant: Mistrust and Resistance in Attorney-Client Interactions.” Social Forces 100 (1): 194-217.

Clair, Matthew. 2020. Privilege and Punishment: How Race and Class Matter in Criminal Court Princeton, NJ: Princeton University Press

Hoag, Alexis. 2021. "Black on Black representation." NYUL Rev. 96: 1493.

Jayadev, Raj, and Janet Moore. 2022. "Participatory Defense as an Abolitionist Strategy." In Transforming Criminal Justice: An Evidence-Based Agenda for Reform Edited by Jon B Gould and Pamela R. Metzger.

Schilke, Oliver, Martin Reimann, and Karen S. Cook. 2012. “Trust in social relations.” Annual Review of Sociology 47: 239-259.

Washington, Harold R., and Geraldine S. Hines. 1983. "‘Call My Lawyer’: Styling a Community Based Defender Program." Black Law Journal 8: 186.

Matthew Clair, Ph.D. is Assistant Professor of Sociology and (by courtesy) Law at Stanford University. He is the principal investigator of the Court Listening Project: https://www.courtlisteningproject.org/

Michael O‘Key is a Ph.D. student in Education Policy at Stanford University.

Bakr Shehadeh is a graduate of San Jose State University where he studied sociology.