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question about possible attorney malpractice

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awegrzyniak

Junior Member
What is the name of your state (only U.S. law)? Michigan. I'm currently being charged with a felony and I hired an attorney to represent me. I took advantage of my right to a preliminary examination. After my lawyer met with the prosecutor, he called me to explain that the arresting officer could not attend the preliminary examination and that if I didn't waive my right to the examination, the prosecutor would not offer me a plea deal and would suggest a higher sentence. So of course, that's what I did. The resulting plea deal consisted of a withheld judgment. My court date next week is to enter my plea. I've done quite a bit of research and I've learned that nearly every case where the arresting officer cannot attend the preliminary examination results in the charges being dismissed. My attorney must have known this. Instead of suggesting I go through with the P.E (knowing the arresting officer couldn't attend) to get the case dismissed, he worked with the prosecutor to scare me into waiving my right to a preliminary examination. I'm no lawyer, and I know extremely little about this. If anyone could provide their insight I'd greatly appreciate it. Thanks in advance!
 


quincy

Senior Member
What is the name of your state (only U.S. law)? Michigan. I'm currently being charged with a felony and I hired an attorney to represent me. I took advantage of my right to a preliminary examination. After my lawyer met with the prosecutor, he called me to explain that the arresting officer could not attend the preliminary examination and that if I didn't waive my right to the examination, the prosecutor would not offer me a plea deal and would suggest a higher sentence. So of course, that's what I did. The resulting plea deal consisted of a withheld judgment. My court date next week is to enter my plea. I've done quite a bit of research and I've learned that nearly every case where the arresting officer cannot attend the preliminary examination results in the charges being dismissed. My attorney must have known this. Instead of suggesting I go through with the P.E (knowing the arresting officer couldn't attend) to get the case dismissed, he worked with the prosecutor to scare me into waiving my right to a preliminary examination. I'm no lawyer, and I know extremely little about this. If anyone could provide their insight I'd greatly appreciate it. Thanks in advance!
If you don't trust the attorney you have, you should get another attorney.
 

awegrzyniak

Junior Member
If you don't trust the attorney you have, you should get another attorney.
Well that's a great idea. Unfortunately, I don't have that kind of money to hire another attorney. I've spent $5,000 on retaining this one. I appreciate your wonderful advice, but I was asking if he worked with the prosecutor to avoid the case being dismissed. After all, I'm the one who hired him, not the prosecutor. Don't you think he should be working to help me reach the best possible outcome? Ive always thought that was the job of an attorney, but perhaps I've been mislead. Thanks for your help though!
 

quincy

Senior Member
Well that's a great idea. Unfortunately, I don't have that kind of money to hire another attorney. I've spent $5,000 on retaining this one. I appreciate your wonderful advice, but I was asking if he worked with the prosecutor to avoid the case being dismissed. After all, I'm the one who hired him, not the prosecutor. Don't you think he should be working to help me reach the best possible outcome? Ive always thought that was the job of an attorney, but perhaps I've been mislead. Thanks for your help though!
The attorney you hired should be working for your best interests, yes. He will work with the prosecutor to get you the best possible outcome. Because you have an attorney at this time, you either need to rely on his advice or you find another attorney you can trust. If your retainer is not a non-refundable one, this could be a financial possibility for you.

It is not true that if the arresting officer does not attend the preliminary examination that a felony charge will be dismissed, by the way. Where did you hear this? Also, as a note, most felonies are sent to the Circuit Court on a waiver of the preliminary examination.

The preliminary hearing is often called a "probable cause" hearing because this is when the prosecutor will present to the judge information on the crime that was committed and evidence that indicates you were the one who committed it. Probable cause is a fairly low burden of proof that the prosecutor needs to meet in this hearing. For instance, for a trial, he will have to show "beyond a reasonable doubt" that you committed the crime.

Generally, not all of the evidence will be presented or all of the witnesses will be present at the preliminary hearing - the prosecutor needs just enough to convince the judge that probable cause exists that a crime was committed and you committed it. The presence of the arresting officer, therefore, is not always necessary if other evidence adequately supports the case against you.

If the prosecutor cannot establish probable cause on the felony charge, the judge still has options. He could potentially dismiss the charge, but with a felony this could be unlikely. The judge could also bind the case over on different charges (and, if I remember correctly from your other thread, you had quite a few charges) or the judge could reduce the felony charge to a misdemeanor.

Because probable cause can generally be demonstrated, the preliminary exam is often waived and the case will be sent over to the Circuit Court for an arraignment and a pre-trial conference.

Apparently your attorney believes that the prosecutor has enough to show probable cause and evidence enough to support the felony charge, with or without the arresting officer. However, you can, and probably should, discuss this with your attorney to find out his reasons for suggesting you waive the preliminary examination if you have concerns.

That said, if the prosecuting attorney has offered you a "withhold judgment" plea deal, that sounds to me to be pretty good, based on what you disclosed in your last thread. What it means is that there will be no conviction entered on the charges against you as long as you do not violate the terms of your probation. Some of the conditions of your probation may be attending a drug/alcohol program, some community service hours, possible jail time, and paying for the costs of the prosecution. If you are arrested again, though, or you violate any of the terms of your probation or do not satisfy all of the terms, all of your previous charges can be entered and any new charges will be added to that (which would not be good at all).

If you still think the evidence against you is not strong and you believe your attorney is not working in your best interests and you are not happy with the plea deal, speak with another attorney in your area for a review of all facts. My best guess, based strictly on what you have disclosed here and in your other thread, is that your attorney is doing the best he can with all of the charges you racked up, the prosecutor's deal might be a generous one, and that there has been no attorney malpractice. Attorney malpractice is not common.




(thank you for deleting your other post, by the way - it would not have been to your benefit to leave it in place)
 
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awegrzyniak

Junior Member
Is it a non-refundable retainer?

The attorney you hire should be working for your best interests, yes. He will work with the prosecutor to get you the best possible outcome. Because you have an attorney at this time, you either need to rely on his advice or you find another attorney you can trust.

It is not true that if the arresting officer does not attend the preliminary examination that a felony charge will be dismissed, by the way. Where did you hear this? Most felonies are sent to the Circuit Court on a waiver of the preliminary examination.
I know it's not garunteed to get dismissed if the arresting officer doesn't attend the preliminary examination. I only read that in most cases, that's the outcome. Surely he had to have known that, and instead of giving me that option and warning me that it's not garunteed, he just told me that if I didn't waive it, the prosecutor would retract his deal and suggest a higher sentence. Because of that, it tells me that the prosecutor knew it would likely get dismissed. I mean...if that wasnt probable, why would he threaten me with a higher sentence (and mentioning that he would not offer me a plea deal)? I just want to point out that I'm grateful for the deal that was given to me and I know I could've been facing a lot worse. I just feel like the attorney had the opportunity to get this case dismissed but instead, worked as an agent of the court to ensure a conviction.
 
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Ohiogal

Queen Bee
Well that's a great idea. Unfortunately, I don't have that kind of money to hire another attorney. I've spent $5,000 on retaining this one. I appreciate your wonderful advice, but I was asking if he worked with the prosecutor to avoid the case being dismissed. After all, I'm the one who hired him, not the prosecutor. Don't you think he should be working to help me reach the best possible outcome? Ive always thought that was the job of an attorney, but perhaps I've been mislead. Thanks for your help though!
If it had been dismissed at the PE, it could have been dismissed WITHOUT prejudice. Which means that it could be refiled again. And in the long run, you could have faced a worse plea offer. So quite frankly he may have been working on your behalf. You however aren't looking at the BIG PICTURE. The PE also could have been continued. And hey -- what quincy stated as well.
 

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