The Oklahoma Bar Journal December 2024

COMMUNICATION WITH THE CLIENT It all begins with communica tion with clients. Communication is different with each client, and new practitioners may struggle with the kinds of pitfalls they may face. Some clients will tell the same story a hundred times. Others will barely talk at all. More will act as unrealized attorneys, giving you the law they found on Google or in the law library. Rule 1.14 of the Oklahoma Rules of Professional Conduct addresses lawyers’ duties when dealing with a client with dimin ished capacity. As much as pos sible, the lawyer should deal with that client as any other. If the lawyer feels that the client could be exploited because of the condition, the lawyer may take steps to protect the client, and this rule authorizes revealing otherwise protected privileged information under Rule 1.6. In a criminal case, when the client is unable to rationally assist in their defense, a lawyer may need to file an application for competency evaluation. Moreover, even if the first professional deems the client competent, a lawyer who still has concerns may request a jury trial on competence or request a second evaluation. Client communication is one of the most difficult parts of this profession, but it is necessary. Communication and client inter views with criminal defendants may look different than in other types of cases because the goal is to defend your client, ensure that law enforcement did not violate any of the client’s constitutional rights and hold the state to its bur den of proof beyond a reasonable doubt. Sometimes, the job may be

are particularly important when interviewing witnesses for impeachment purposes. The investigation phase should help in developing a defense for the client. Investigation of a potential defense or defense witnesses does not require calling the witnesses, nor does it prevent defense counsel from making strategic decisions the defendant may not like or accept. 10 In State v. Jones, 11 the defendant argued on appeal that defense counsel was ineffective for not presenting conflicting alibi evidence and for not calling witnesses who were not credible. However, the court held that the trial lawyer’s main duty is to make informed decisions and not to throw all argu ments against the wall and hope one works. 12 Trial lawyers must investigate to make those informed choices. Clients nearly always turn against their trial lawyers after a conviction, so they should docu ment in their trial notebooks or files what they did and why they made certain decisions in case the client raises an ineffective assistance claim or files a grievance.

explaining to the client that their story does not match the evidence or that that story does not equal a legal defense, but the lawyer must know what the story is to prepare a defense and to investigate any possible defense that may exist, which leads to tip number two. In light of the evolving deci sions under ineffective assistance of counsel claims, trial counsel’s duty to investigate has reached a higher duty of importance. At a minimum, the attorney must file any pretrial motions: a discov ery motion, motions in limine to attempt to prohibit the state from introducing certain kinds of evi dence or making certain kinds of statements, a motion to suppress, a motion for a Jackson v. Denno hearing if the client made any statements, and file any subpoenas for witnesses. Further, the client or an investigator should interview or attempt to interview the state’s witnesses and talk to potential defense witnesses. Investigator involvement or second attorneys INVESTIGATION

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

14 | DECEMBER 2024

THE OKLAHOMA BAR JOURNAL