FAQs: How to instruct a lawyer and prepare a defence

N.B.: The information on our website is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained on our website. Any reliance you place on such material is therefore strictly at your own risk. Fair Trials disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided.

You should seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in.

Do I need a lawyer?

If you are being accused of a crime, it is crucial that you obtain advice from a criminal lawyer based in the country where you have been arrested. Only a local lawyer will have the expertise to explain and advise on the legal system and to prepare your defence.

How do I find and instruct a lawyer?

In some countries, a state-appointed lawyer will automatically be assigned to you. If this is not the case, you should ideally only instruct a lawyer if they have been recommended by a trustworthy source. Be wary of privately funded lawyers who come to find you after your arrest.

If you do not already know a lawyer, the local law society or bar association might be able to help you find one. Sometimes, there might also be non-governmental organisations that might be able to help. If you have been arrested outside your own country, your consulate might be able to help as well.

Once you have found a lawyer you must contact them and ask what they need in order to formally accept your case (this may require you to sign a ‘Power of Attorney’).

What really matters when instructing a lawyer?

• Is this lawyer competent for the job you need them to do? Are they experienced in your type of case?
• Do they have a good reputation? Is the lawyer truly independent of all other parties involved?
• Is the lawyer a member of the local bar association and registered to act as a lawyer?

I’m not happy with my lawyer: What should I do?

Many people think that their lawyer is not good enough for the job. The quality of lawyers can vary considerably, but you cannot always assume that your lawyer is doing a bad job, just because they are not doing exactly everything you want them to do, or because you are not getting the outcome you want.

If you have been arrested outside your own country, remember that working practices can vary between cultures, and your lawyer might be doing a good job, even if they do not act in the same way you would expect a lawyer in your home country to do.

If you have concerns about what your lawyer is doing, you should try to solve the problem by letting them know exactly what you are unhappy about and looking for ways to improve their services.

If that does not work, you might consider appointing a new lawyer. Be aware that a new lawyer will usually not take on your case until you have paid your fees to your former lawyer. Your former lawyer needs to be informed that you have changed lawyer so that they can forward your file to your new lawyer. Even if you are unhappy with your lawyer, changing your lawyer might not necessarily be the best thing to do. Changing your lawyer at the wrong time could mean, for example, that there are delays to your case, or that your new lawyer does not have enough time to prepare your case.

It may not be possible to change a court-appointed or state-funded lawyer. If this is the case and you are not happy with your lawyer, you should consider whether you can afford to appoint a privately funded lawyer.

Why do I need a local lawyer if I have a lawyer in my home country?

Many people who have been arrested outside their own country try to get a lawyer from their home country to help with their case. You need a lawyer who knows the law of the country where you are being accused of the crime. Legal systems and laws differ from country to country (and in some countries, between regions) and you need a lawyer who not only knows and understands local laws but is also allowed to represent you in the country of your arrest.

Can one lawyer represent me and other people arrested with me?

It is important that your lawyer’s focus is on your own best interests. This might not be possible if they represent you, as well as someone else involved in the same case.

A conflict of interests can arise when you are arrested with someone else in relation to the same offence (if their story is different from yours, or if they want to claim you are solely responsible for the offence). It is possible that your co-defendant or other parties may try to use information that you provide to their advantage, or otherwise adversely affect your defence.

To guard against these risks, it is often in your interests to have a separate lawyer representing you, and no-one else.

How will my lawyer be paid?

In many cases, you will be responsible for paying for your lawyer, although you may be able to ask friends and family for financial support. In some cases, your lawyer’s fees could be covered by the state (for example, through legal aid), but the amount that your lawyer gets paid by the state could be very limited. In some countries, if you cannot pay for your lawyer privately, you might not be able to choose which lawyer will represent you.

Legal fees should be discussed and agreed during your first contact with your lawyer. The lawyer should be able to tell you at this stage how much you are likely to have to pay and how costs will be calculated. They will have to take into consideration the time they spend working on your case (which might be charged by the hour) and any additional legal costs such as court fees. You should ask your lawyer to explain any likely additional costs.

Your lawyer may agree to a fixed spending limit, or you could arrange to pay your legal fees on a monthly basis. In any event, it is advisable to reach an agreement to pay the fees in instalments rather than paying them all upfront.

You/your family should ask for written invoices for fees, and not feel threatened into sending money after just a phone call.

What if I cannot afford to pay legal fees? What is legal aid and when is it available?

Not every country provides free legal aid. If it is possible to get legal aid, you may need to show that you have a low enough income to be eligible.

Make sure you clearly understand how often you can see your lawyer and what kind of help they can provide at the state’s expense. You should discuss this with your lawyer when you meet.

You might not be able to hire a lawyer of your own choice if you are receiving legal aid and sometimes you may only meet them when you are due in court.

Legal aid may not cover the additional services of an interpreter, which may limit the communication possible with your lawyer.

How do I get the best from my lawyer?

The more organised you are in preparing for your meeting with your lawyer, the more productive the meeting will be. Your lawyer might not be able to visit you as often as you would like, so get as much as you can from any meeting you do have.

Prepare your questions in advance, and in writing.

Prepare a written statement setting out the background of your case.

Take notes – it can be very difficult to remember lots of information, and you do not want to forget important advice.

Ensure any written documentation will not be confiscated by the police before writing anything on paper. It may be useful to mark all written documentation as ‘Privileged Post’ (though this is not guaranteed to prevent police in some countries from confiscating or reading your notes or communications).

It is difficult to understand my lawyer: What should I do?

Ask your lawyer to speak slowly and to use non-legal terms.

If you do not fully understand something, tell your lawyer that you don’t understand it, and ask for an explanation.

If the lawyer does not speak your language, ask to use an interpreter.

Where should I keep documents relating to my case?

It is important to keep records of everything that happens in your case. Keep all the paperwork you are given and, if possible, keep a detailed diary of events.

It might be a good idea to leave original documents (such as court decisions) with your lawyer and ask them to give you copies of them, as originals are not always safe in prison.

Mark all communication with your lawyer or legal advisors as ‘Privileged Post’ and ‘Confidential Legal Mail’ (ask your lawyer what wording you should use and whether you should write this in the local language).

What should I agree with my lawyer when we first meet?

Ask the lawyer to confirm your instructions either orally or in a letter setting out the details of your agreement. This should cover the following issues:

• Lawyer’s fees: As stated above, it is important that you come to an agreement on fees. Other legal costs should also be discussed (court fees etc). Keep a written record of this.
• The extent of what they will do for you: You should make clear whether the lawyer will represent you in all legal proceedings, up to and including trial. Also ask about appeals and other post-trial proceedings (such as applications for early release etc.).
• Who will do the work: Ask your lawyer to make clear who will do the work (will they do it, another qualified lawyer, a paralegal?) If your lawyer is unavailable to attend a particular hearing, will they send a colleague to do so?
• How will you work together: Decide which decisions the lawyer can make alone, and which require your approval. Decide how regularly the lawyer will communicate with you about your case. Your lawyer should keep you updated regularly on the developments. You must also keep them updated on any significant developments in the case from your side. If you cannot communicate directly, agree on a family member or friend who will act as contact point. Bear in mind however that any time your lawyer spends dealing with you (communicating with you, reading correspondence, speaking on the phone) may be added to your legal fees, so try to be clear and organised in what you say, and avoid unnecessary repetition.
• How will they accept instructions: Ask your lawyer if they need you to sign a Power of Attorney. You should also clarify with your lawyer what they can do without asking you first, and what you do not want them to do without your permission.
• Sharing of Information: Ask your lawyer if they will require you to sign an authorisation form before they can share information with others.
• Confidentiality: Information you share with your lawyer should be confidential. However, before you share sensitive information, confirm this with your lawyer. Ask them whether they can ever be obliged to reveal all the information you give them to the prosecution, the court or anyone else.

What should I ask my lawyer?

There are a lot of questions that only a locally qualified lawyer can answer. Below are some suggested questions, but please note that this list is not exhaustive. There may be questions below which are not relevant to your case, and you may well have a lot more to ask.

Your rights

• What are your rights?
• What right do you have to legal representation, free legal aid, family visits/contact with family by letter or telephone?
• If you don’t speak the language of the court, will you have an interpreter? Will you receive a translation of the court summons/court decision/other documents in the case?
• Can they explain the prison system?

Information about the case against you

• Ask whether the investigation against you is complete and, if not, when it will be completed?
• When is the next court hearing? What is going to be discussed or decided at that hearing? When will your case come to trial?
• When and how will you be given the details of the case against you?
• How serious is the case against you and how likely is a guilty verdict?
• What is the maximum sentence that you can get? What is the likely sentence?

Pre-trial detention or conditional release on bail

• How long can you legally be held in custody by the police before:
  • They formally tell you what the allegations against you are (normally referred to as the ‘charges’); and
  • Your trial begins?
• If the officers intend to keep you in custody, when can you apply for bail, and what would help you to be granted bail (e.g. a place you can stay nearby, a clean previous criminal record)?
• Tell your lawyer if there is a place where you could stay on your own, with family or friends, as this may help you avoid pre-trial detention.
• How regularly will you appear in court for the judge to decide whether or not you should be kept in detention?

How can I help my lawyer to prepare my defence?

Contacting witnesses and preserving evidence

You need to understand who will be doing what and how you can help your lawyer to prepare your defence. Ask them:

• Who is responsible for putting your case together, contacting witnesses and preserving evidence?
• Will you and your lawyer get access to the court file, be allowed to take copies of documents, or otherwise see the evidence against you?
• Will you be asked to testify or produce other evidence for trial?
• What is the deadline for submitting evidence to the court for your defence, or providing names and addresses of witnesses, or their witness statements, or expert reports? Can that deadline for producing evidence be extended?

Give your lawyer all the information you think will help with your defence and ask them what other information will make your case stronger. You should ensure your lawyer is aware of any evidence that may need to be preserved before it is lost (for example CCTV evidence, flight records or hotel records).

You should also tell your lawyer if there are any witnesses who can support your defence as soon as possible so that if they are non-resident, they can contact them before they leave the country.

Deciding your plea

You should discuss whether you should plead guilty or not guilty with your lawyer at your first meeting. You must first discuss with your lawyer whether you have a defence in law to counter the charges against you. If you have a good defence, your lawyer will probably advise you to plead not guilty.

Sometimes what you consider to be a defence (for example, a lack of knowledge of the law or a particular fact) is not a legal defence against the charges in the country of your arrest; your lawyer may then advise you to plead guilty.

Make sure to find out if any benefit is offered for taking responsibility (pleading guilty) at an early stage, or for providing evidence to the prosecution for use in other cases.

It is also very important that you understand the consequences of pleading guilty. Pleading guilty often means that you lose some very important rights, and it is not always possible to change your mind at a later stage. You must be aware of what rights you could lose, and what might happen to you by pleading guilty. You might get a reduced sentence, but you might, for example, regret getting a criminal record and/or losing your right to remain in the country.

Reducing your sentence

Ask your lawyer whether there is any information that you can provide to the court which will assist in reducing your sentence (this might include information about any medical conditions that you suffer from; your age, your family circumstances; your prior criminal record – or lack thereof – or information about the circumstances in which you committed the offence).

Ask your lawyer what documents you should provide to the court for the purposes of sentencing (in particular ask whether the documents need to be legalised and translated). You will need your family to assist you with preparing these documents.

What evidence can I present to the court?

What evidence can be used at trial, and the manner in which they can be introduced vary significantly from one country to another, so you need to ask your local lawyer for this information.

Make sure every document you want to present to the court is presented in a legally admissible form. This will also vary from one country to another so you need to discuss it with your lawyer (in many countries you will need to translate the document into the official language of the country and legalise it).