In February, 2022, your client, a New York man was hit by a Volkswagen driven by a woman, which allegedly left your client with severe injuries. He became the plaintiff. The case is ongoing in the New York Court system. The man had filed three or four prior motor vehicle cases in the past ten years. That does not make it not a case or a non-starter. However, what would you think if you were the plaintiff’s lawyer and you wake up one day and your client, the Plaintiff, Rex Heuermann, has just been arrested on suspicion of being a serial killer on Long Island and charged with three and possibly more murders of local women? Thankfully, this does not happen too often, if ever, in our practices. But, we all have situations in which the client’s case becomes impossible to pursue. Hopefully, you did not spend a lot of time with your client.
What are your options here? Well, ethically, the facts of the case are the facts and as his lawyer you could pursue the case or at least try to have it settled. In reality, the case has no value and is not worth pursuing.
A criminal plaintiff or defendant can have their depositions taken and theoretically can come to court and testify at trial. I have deposed people in prison before and had an incarcerated client come very close to having to testify at trial, but these are one off and highly unusual events. You cannot easily and effectively prep an incarcerated client and the process to produce an incarcerated client for Court proceedings is challenging within the criminal system. It is even more challenging in the civil system because the system is just not set up to deal with incarcerated individuals, who require a ton of security and personnel around.
Also, the client’s criminal lawyer would not permit a client to be deposed in a civil matter, so the civil matter would be delayed until your client is convicted of the criminal matters. In civil cases, you can invoke your fifth amendment right to silence, but your refusal to answer questions will be played on video to the jury. Further, if your client is the plaintiff, as would happen in this case, he has the burden of proof as to the crash and his injuries. While he might be able to testify as to his side of the story, the Defense would run into endless invocations of the 5th Amendment on cross-examination. Questions like: “Did you kill those women?”, “Did you deceive everyone around you about your actions?”, “Were you disabled by your injuries when you were arrested?”, etc. would certainly go to his bias, character for truth telling etc. Eventually, it would become absurd.
In practice, I would have a long discussion with the client and discuss options, but the expected outcome is either he drops the lawsuit or you withdraw as counsel. A private civil lawyer is not required to keep a client until death do us part. Our fee agreements give both the client and the lawyer the right to end the relationship without notice or reason. Also, a private citizen is not entitled to a lawyer in civil cases. Contrary to public opinion, a lawyer is only required in criminal proceedings per Gideon v. Wainwright. So, the only thing a civil lawyer needs to worry about is making sure that there are no pending hearings, motions, or other Court events to attend to before dropping the client.