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Emergency Criminal Conundrums for the Family Law Attorney

September 26, 2011

Part two: Emergency Criminal Conundrums for the Family Law Attorney by James M. Hallett. Read part 1 here.


This is as good a time as any to think about money. Remember the apocryphal proverb: The dentist collects his fee while the tooth still hurts. Even if you are a compassionate soul, getting paid must be part of the picture. Be clear and direct from the start. If the call is from a current client, discussing the fee at this particular moment may not be necessary. You are likely on retainer and are billing by the hour. If the call is from the Yellow Pages, the Internet, or another distant referral source, you are not going to be able to quote an accurate fee on the spot. I tell the client, “Here’s what it’s going to take to get my immediate attention, and here’s a range of what this eventually could be. Are you ready to pay that? Now? If I cannot handle the matter based on the scope and depth of the problem, I’ll refer you to a specialist who can.”


Bail is routinely employed as a means of preventive detention in spousal and child abuse cases. Police virtually automatically set felony bail on our clients. This really is abusive, given that almost all these cases end up as misdemeanors, but at least in California, we have lost this battle.  Certainly  a referral to a bail bondsman is one possibility, but don’t jump to that too soon. If I think I can get my client released on his own recognizance at the arraignment (which happens within one or two days if the client is in custody), then I am going to balk at the client dropping $10,000 on a $100,000 bail just to get a little immediate relief.

In making a bail decision, I  want some preliminary facts. Is my client filthy rich? Fine, post bail. If not, is my client willing to sit in jail pending arraignment? Answering this usually means that I have to go to the jail and have a little cost-benefit chat with my client. Will the client be staying in the relatively comfortable local jail pending arraignment, or will the client be transferred to the not-so-nice county jail? (This is a conversation worth having with the jailer or watch commander.) How traumatic is incarceration for the client? This varies wildly from one to another.

I also need some preliminary facts about the allegations against my client. This can be tricky. In a perfect world, I get to the jail before the arresting officer leaves the station and get at least some basics from the officer. A distant second choice is to get some information from my client. What I want to know first is how bad is this? If felony domestic violence bail has been set at $50,000, but a detective has come in with a rape kit, I will call bail bondsman now and ask questions later. If there are serious injuries-say, the victim’s arm is broken-then bail is not going down and we might just as well post bail sooner, rather than later. The same is true if there are priors or probation. If the extent of the injuries, however,  is a couple of bruises, then posting bail can be a colossal waste of money. So don’t just call the bondsman and feel that you have done your job.

James M. Hallett CFLS, CCLS
(State Bar of California, Board of Legal Specialization), practices family law in Manhattan Beach, CA and is a member of A Better Divorce.

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