When commencing representation of a criminal client, have you checked to determine if the client also has a colorable civil rights suit for constitutional violations by law enforcement officers?

In my criminal practice, there have been numerous clients who have. Some of these causes of action include malicious prosecution, false arrest, illegal search and seizure, violation of civil rights, and abuse of process, to name a few. Many offenders are well-known in their department and have documented instances of the same or similar offenses. Police departments usually do nothing to abate such illegal conduct and hence have created a permissive environment and culture of constitutional violations, making a civil case against the governmental entity fruitful. Unfortunately, many criminal trial attorneys have a tendency to address only the criminal charges, leaving the client uncounseled in the civil context. Many of my defense colleagues have little knowledge of what constitutes a civil rights violation. As such, the client may report the factual predicates supporting a civil rights claim, but criminal practitioners are either unable to recognize it, or if it is recognized, don't believe it is within scope of their representation to advise the client about it. This is a grave mistake and can have fatal consequences for clients. Such confusion may very well land lawyers in the malpractice firing line with a complaint caption bearing their name.

There are specific - and complicated - deadlines for filing civil rights causes of action. To compound the problem, there are two separate and distinct areas of law that apply to these cases - federal and state - each with their unique rules. The juxtaposition between these laws in filing tort claims notices, statutes of limitations and the manner in which to pursue a governmental entity differs vastly. Attorneys also must be cognizant that there often are both one- and two-year statutes of limitations for the causes of action typically involved in such matters. Additionally, when to file in relation to the status of the criminal matter involves many intricate nuisances that can only be judged on a case-by-case basis.

Also, there are practical and tactical decisions to make regarding whether to pursue a civil rights case. This is especially so if there still is a criminal case against the client. As a certified criminal trial attorney and a former assistant prosecutor, I am well aware that filing a notice of claim during the pendency of a criminal action may very well affect the criminal practitioner's ability to work out the most satisfactory result for a client, despite that fact that such considerations by the prosecution are ethically infirm. In all, it is the practitioner's role to navigate these complexities - to increase the maximum benefits of both a successful criminal defense while keeping the civil rights complaint viable, if that is the client's wish.

If criminal practitioners don't handle civil rights cases, it is wise to refer clients to an attorney who does - and one with a working knowledge of criminal trial practice as well. This can greatly assist in ensuring that cl8ients are apprised of all their rights and avoid any confusion later as to the scope of the representation. If attorneys don't refer clients to a civil rights attorney for a consultation, then at a minimum they should know and advise the clients of the basic Title 59 tort claim notice and statute of limitations provisions.

Clients also should be asked to sign a document confirming they've been advised of all appropriate deadlines and that the firm is not representing them for potential civil rights violations, if that is the client's decision. It's also wise to prominently state that their failure to secure the services of an attorney who practices in this area, within the appropriate timeframes, will result in their being barred from pursuing these civil rights causes of action in the future.

Once again, an ounce of prevention... well, you know the rest!