Lawyer Question

[Kris Neri]

Lawyers, or those who know about them...has anyone ever heard of a real life prosecutor (ADA; federal prosecutor, etc) who took a leave of absence from his/her job to temporarily work as a defense attorney on one case? I have such a situation in the book I'm doing revisions on now. It works for me if it's unprecedented, since that it's unusual serves as both a red herring and a significant clue. But my editor thinks it's a stupid choice since she never heard of such a thing. So, I'm looking for ammunition.

Thanks,
Kris

[Reece Hirsch]

I'm a lawyer, but not a litigator. That said, this situation sounds a little implausible to me because of the conflict of interest issues. When federal prosecutors leave their government jobs, they are usually restricted to some degree in their ability to try cases opposite the government. It's hard for me to imagine the federal government, as an employer, allowing an attorney to take a leave of absence to defend a criminal case in which the federal government (or even a state government) is prosecuting. Also, the attorney would need to get malpractice insurance with respect to handling the case because his employer's policy wouldn't cover it.

[Benjamin Sobieck]

I've got a lawyer (and litigator) in the family. This sounds implausible for a couple reasons. Most lawyers - save for the really big ones - are too busy to up and leave suddenly. It's a great way to become unemployed when the temporary gig is up. Insurance, as Reece mentioned, is another biggie. So is the manner of law being practiced.

Finally, it just doesn't sit well with other lawyers. It's like any other job. You've got to be a team player. Focusing attention away from the team can make one look like a traitor, a snob or both.

Then again, I haven't read your work. Knowing the situation would help. It'd be nice if the lawyer in my family would come defend me if I needed it.

[Benjamin Sobieck]

Can you give us a set-up for why the character wants to do this? That would help. Maybe the switch is more logical than it sounds.

[Debbi Mack]

I used to practice law and I'm inclined to side with Reece on this. Taking a leave of absence, as opposed to quitting the job--sounds like definite conflict of interest problems there. I don't know about federal prosecutors, but many private defense attorneys (at least, in Maryland) start their careers as state prosecutors. If you wrote it so the attorney quit a state prosecutor's job to open his/her own office, then I'd be more inclined to believe it.

And, yes, the attorney would most definitely need to get malpractice insurance before taking the case.

[Kris Neri]

Thanks for the feedback, guys. Though my madcap Tracy Eaton mysteries don't have a strong connection to reality -- that's the premise in these books; Tracy is the daughter of eccentric Hollywood stars and they're all reality-challenged -- but in this instance, I'm injecting more reality into the situation with this ADA.

The situation is this: Tracy's husband, Drew, is accused of murder. His ex-fiancee, CeeCee, an ADA, leaves her job and agrees to defend him. Drew's mother talks her into this, and since he can't stand up to his mother, he agrees to it. In effect, CeeCee's choice serves as a double red herring and a major clue. First it looks like she wants to win Drew back, since he broke off their engagement to marry Tracy. Then it looks like she might be the murderer herself. Actually, she's guilty of another crime, related to the murder, but not guilty of the murder itself. She takes on Drew's defense to try to control what info comes out, and to railroad him so nobody looks too closely at her.

[Benjamin Sobieck]

Drew's mother talks her into this, and since he can't stand up to his mother, he agrees to it.

Would you want a lawyer that needed to be talked into representing you? Would you be comfortable with yourself if you needed persuasion to employ that same lawyer in your murder case? The answers are "no" and "no." This is insane. No, this wouldn't happen in real-life.

But don't take it the wrong way. Just because it wouldn't work in reality doesn't mean it can't in your novel. As you say, your characters are "reality-challenged." What you are proposing seems to challenge reality. Don't break from that theme if that's what works for you.

My verdict: Go with it.

[Debbi Mack]

Ooh! When you say CeeCee is an ex-fiance, that sort of raised some red flags for me. I realize she's not currently romantically involved with her client, but still . . . it may not be a technical violation of the rules of the professional conduct, but I wouldn't want to do it. Like I'd never want to represent a friend in a divorce case (good way to lose a friend).

The professional conduct rules also prohibit attorney conduct that has "the appearance of impropriety"--but, again, not sure it would include this situation. If the question of her still having feelings for him is raised, it may possibly apply.

I don't know. Any thoughts of other lawyers?

[Kris Neri]

Thanks, Debbi, but that's a bit of reality I have to ignore for the sake of story. In this book, it turns out CeeCee doesn't have feelings for Drew at all. But I broke the same rule in my first two books in this series. As I said, this series is set further from reality, but I've noticed that rule broken in lots of legal mysteries or thrillers. It's the close connection between characters that raises the stakes and makes readers care about the outcome.

Sometimes we do make choices for the sake of story that wouldn't play in real life. I'm reading the ARC of Kent Krueger's next book, HEAVEN'S KEEP. I love Kent's books; he's an amazing writer. But the protagonist, Cork O'Connor, has been a county sheriff a couple of times, and a PI in between those stints as sheriff, and in this book, he applies for a deputy's job. The current sheriff is someone he hired and trained. She suggests he's been in and out of the uniform too many times, and doesn't want to rehire him. In real life he probably wouldn't have had as many chances to come and go. But it works in these books. It's given him different kinds of cases, and he's been able to approach them in different ways. It's kept the story fresh.

It's a fine line we sometimes walk in writing fiction.

[Debbi Mack]

True enough. I see unreal lawyer stuff done all the time on TV and in movies. They're about the worst offenders. :)