In the legal profession we are tasked with being intimately familiar with the ways that different areas of law interact with each other. The mastering of interdisciplinary practices is an essential element in providing effective representation to our clients.
For example, a practicing immigration attorney cannot competently represent their client without also keeping abreast of the latest developments in criminal defense law. In fact, the Supreme Court has held that a criminal defense attorney must advise noncitizen clients about the potential immigration consequences of accepting a guilty plea in order to provide effective assistance of counsel guaranteed by the Sixth Amendment of the U.S. Constitution, as held in Padilla v. Kentucky, 559 U.S. 356 (2010). It is becoming more common that an attorney’s fulfilment of their basic ethical duties of competence and due diligence require them to be adept at understanding multiple areas of law, even if those areas do not form the majority of the actual cases that the attorney handles within their practice. Amidst the increasing interconnectedness of legal disciplines, it is becoming gradually more important that attorneys who practice civil litigation are familiar with criminal defense practice, and vice versa. More specifically, when the underlying conduct of a civil lawsuit against your client also lead to the filing of a criminal complaint–a civil litigant must be intimately aware of both the procedure of a criminal trial and how their client’s actions in the criminal matter will ultimately impact their civil defense.
Similarly, that same litigant must be incredibly cautious that their actions in the civil realm do not jeopardize their client’s freedom. It is important to act as both a knowledgeable criminal attorney and skilled civil litigator to accomplish the optimum global outcome for the client.
Perhaps most importantly, for the civil litigant, is that the timing of your interdisciplinary mastery must be invoked even before you perform any activities on the file for the civil matter. For example, you retain a client who has been named as a defendant in a complaint filed in the Court of Common Pleas. Your client is an individual who is accused of conduct that also resulted in the filing of criminal charges against them, and there is a separate criminal trial scheduled to take place at some point in the future. Regardless of whether you are representing your client pursuant to an insurance policy or if your client has retained you directly, there is a very important step that must be addressed before you perform any work on your file. Initially, the Fifth Amendment of the U.S. Constitution grants a criminal defendant the right against being compelled to provide evidence against themselves. Article 1, Section 9 of the Pennsylvania Constitution also guarantees that right. Fortunately, the right against self-incrimination also protects your client in the realm of civil litigation, as in McCarthy v. Arndstein, 266 U.S. 34 (1924). Practically, this right allows you to protect your client from being forced to produce discovery or testify in the civil case in a manner that could negatively impact your client’s defense in the criminal matter.
It is important that you assert this privilege as soon as possible, preferably before any documentation has been produced or any testimony has been given. Most importantly, the failure to adequately protect your client’s rights could result in a costly waiver of those rights. It goes without stating that any statement that your client gives in the civil proceeding can be used against them in the pending criminal proceeding. Additionally, any partial testimony given by your client in the civil matter can used as a basis for arguing that the client has waived their privilege of self-incrimination. This waiver could have the effect of compelling your client to testify fully and truthfully on the subject matter of the waiver in that civil matter, as in Smith v. United States, 337 U.S. 137 (1949). As such, a waiver, even if unintentional, could have negative impact on the client’s criminal defense.
Accordingly, it is incredibly important to avoid having your client testify or produce sworn written discovery in the civil matter before the criminal proceeding has concluded. Therefore, the first step that a civil litigant must take is the filing a motion with the court to stay all proceedings in the civil matter and place the case on deferred status on the basis that your client is asserting their Fifth Amendment privilege. The order should request that a stay is placed on the related civil matter until the full resolution of the criminal proceedings. Practically, this means that all discovery shall cease for the civil matter and any deadlines shall be stayed until there is an acquittal, or in the alternative, a sentence has been entered by the criminal judge. It is very important that no discovery is conducted until after the completion of acquittal or sentencing, rather than simply after the conclusion of the criminal trial, as any testimony provided in the civil matter that is adverse to the client’s criminal defense may also be used as an aggravating factor that could increase the client’s probationary or custodial sentence during the sentencing hearing. Assuming your motion is granted, and a stay has been placed on the civil matter, it is important that you immediately begin conducting informal discovery of the merits of the plaintiff’s claims in the civil matter. Informal pre-litigation informal discovery can assist in fully immersing the attorney in the facts of the case and making that attorney an expert in the case prior to the stay on the civil matter being lifted.
During this period, your client’s criminal defense attorney can act as a very valuable liaison. That attorney will be in possession of a discovery file produced to them by the District Attorney’s office, which will contain details and statements related to the underlying cause of the lawsuit that will ultimately be helpful in preparing your defense. That attorney will also have unique access to the client, in that he has taken informal statements from the client and can provide you with valuable perspective as to whether the district attorney can meet their greater burden of “beyond a reasonable doubt.” Through document exchanges and several conversations with the criminal defense attorney, you can create an extensive preliminary file that will form the basis for your civil defense. In addition to informal conversation and document retention, you will also want to stay current on the progress at each upcoming hearing or trial. Where permitted, it is also very fruitful to attend important evidentiary hearings or the trial itself.
There are obvious cost and time impediments to expending the time and energy to attend these meetings, but they will provide you with valuable information, including: how adverse witnesses will testify; what the district attorney believes is the most damning evidence; and how credible the person who accused your client of wrongdoing is during live testimony. This information will also guide your defense evaluation of the strength of the civil matter.
Moreover, during this hearing process it is also important that your coordinate with the criminal defense attorney and inform him of the implications that any statements the client gives in the criminal matter could have on his civil case. For instance, many civil lawsuits are defended due to the client’s insurance coverage, and in instances of intentional torts, a homeowner’s Insurance policy. These policies often contain provisions in which coverage can be limited by language contained within those policies. Accordingly, the criminal defense attorney must be aware of those provisions and understand the consequences of the specific language of any plea bargain and colloquy that is entered with the court. More specifically, a criminal defense attorney, without relevant knowledge, could inadvertently instruct his client to make on-the-record statements that could unnecessarily jeopardize his client’s ability to find representation for their civil matter. Without this knowledge, the criminal attorney essentially faces the same conundrum outlined in Padilla. These discussions could provide important information that the criminal defense attorney would not be aware of otherwise. After closely monitoring the criminal matter to the completion of the criminal proceedings, you have now placed yourself in the optimal position to represent your client in the civil matter once the stay is lifted.
The basic understanding of criminal law and interdisciplinary cooperation with the criminal proceedings could prove to be the difference between success on the merits or a valiant failure. It is important to stay abreast of all these developments so that each client may receive the most comprehensive representation possible.
John Krawczyk is a litigation attorney with Goldberg, Miller & Rubin in Philadelphia, who focuses his practice on defending clients in various areas of law, including general liability, automobile negligence, premises liability, intentional torts, defamation and construction litigation cases. He is also the president of the board of directors for the first legal aid organization in Philadelphia that provides affordable legal services to low- to middle-income residents on a sliding scale, Equal Access Legal Services.