by Emily Taylor, Walker & Byington
Law Shield Members often ask us if a lawyer will come to the scene of an incident. The answer can be “Yes,” depending on the location and what’s transpired. But there’s often a very good legal reason not to have your lawyer at the scene.
If the incident did not involve a shooting, the police investigation will almost certainly have wrapped up by the time the lawyer can make it there. These investigations rarely last more than 30-45 minutes from the time the officers arrive. In this case, the only efficient way to provide legal advice is by telephone.
In the event that someone has been shot, there can be time for a lawyer to respond, but it is not always in the best interest of the client. Sometimes, a lawyer on the phone is better than a lawyer on the scene, because the police are more trusting and less hostile if they believe they are only talking to lay people.
Also, the phone provides immediate assistance that cannot be overheard by others. Essentially, this is a more effective and secure way to establish attorney-client privilege and give legal advice. Further, police have no obligation to wait for a lawyer who is en route, or to even let a lawyer participate on the scene. Texas Law Shield Program Attorneys have arrived on the scene before, only to be sidelined by the police without any opportunity to communicate with the client.
A less likely (but potentially more damaging) problem is the possibility that if the lawyers show up on scene, we can witness something that is factually important to the case. Even something as mundane as the emotional reactions of the parties involved can become a critical piece of evidence.
If this happens, the State can file a motion to disqualify the attorney. A person cannot be a fact witness and also serve as counsel. If an attorney is disqualified, it may disqualify everyone who is partnered or associated with that attorney. For example, if Gordon Cooper, a member of our firm, appears on scene and is disqualified, all of Walker Byington is disqualified with him. This possibility is remote, but it is a good thing to know.
There are many instances where we make the decision to rush to the scene because the benefits outweigh the risks. The important take-away is that whether or not a lawyer will be there on scene is not a one-size-fits-all decision. Sometimes, that strategy is not in the best interest of the client.