Frequently Asked Questions
At Hickey & Chung, LLP, we take pride in our ability to provide comprehensive guidance and strong client advocacy. For more information on a handful of the most commonly asked questions that our firm receives, please review the information below.
Do I need a lawyer?
Do not wait until you are arrested or charged with a crime to seek legal counsel. If you have any reason to believe that you are under government investigation or that you may be investigated in the future, you should immediately contact legal counsel to protect and advise you. Like a doctor, a lawyer’s ability to help you is directly tied to how early they are involved. You would not wait to see a doctor until a health issue becomes life-threatening, and similarly, you should not wait until you are charged with a crime to seek counsel.
If I have not been arrested or charged, why should I hire a lawyer?
Hiring a lawyer has several benefits. First, it will prevent the government from interviewing you, which in turn prevents you from making damaging statements that cannot be unsaid. Second, your attorney is the only person who can listen to your story – all of it – without the risk of being subpoenaed to testify against you.
Making a full and honest disclosure of the facts to your lawyer allows the lawyer to understand the precise risks you are facing and how to avoid them. Third, a lawyer will prevent you from being charged with obstruction of justice or other criminal offenses related to a cover-up.
A skilled attorney can help you to keep damning information away from investigators without breaking the law and investigate your case to bring advantageous information to the government’s attention. It is far easier to prevent charges from being filed in the first place than it is to have criminal charges dismissed, so you should not wait to call a lawyer if you are or may be under investigation.
What should I do if I am arrested or if a friend or family member is arrested?
Tell the police you do not want to answer any questions until you speak to a lawyer. If they try to trick, bait, or confuse you into answering questions, calmly and politely tell them you want to speak with a lawyer. Then engage the help of a respected criminal defense attorney or ask your friends or family to do so.
Do not discuss the case with cellmates (who can inform on you to help their own case), and do not discuss your case on a jail phone (they are all recorded). Just keep quiet until you can talk to a lawyer that is looking out for your interests.
Depending on the circumstances, you may be able to secure your immediate release from custody without going to court by promising to appear in court and/or posting a bond. A bond is a deposit (typically either cash or a recorded interest in property) that is held by the court during your case and returned to you if you attend all your court appearances and comply with the conditions of your release. A bail bondsman can help with the bond process and will “post” (deposit) the full amount of the bond with the court, typically for a fee of around 10% of the amount of the bond. In more serious cases, only a judge can release you from custody, and you need a lawyer to convince a judge to release you to return home.
Your lawyer should visit you in advance of your court hearing to understand your background, the basic facts of the case and get information for friends and family who can attend court to support your request for release. If you invoke your right to counsel and hire the right lawyer, you can secure a prompt release from jail and, perhaps, never go back inside.
How do I choose the right attorney?
The most important quality in a lawyer is good judgment. Judgment is a critical tool for evaluating risk, thinking strategically, and dispensing advice. There should be a sound reason behind every act the lawyer takes. Avoid attorneys who seem to act impulsively, promise you a specific outcome, or otherwise display poor judgment or unreliability. Ultimately, your lawyer will help you make some of the most difficult and important decisions in your life. Ensure you are confident that your lawyer will steer you in the right direction.
A lawyer’s most important skill is the ability to listen. Only by listening can lawyers learn their clients’ stories, uncover critical evidence, and effectively cross-examine a witness at trial. Your lawyer should be interested in your story – not just your money – and their advice should take into account both the facts and circumstances of your case and also the broader context of your life in which it unfolds. This is called “client-centered advocacy,” defending clients instead of just cases, and is a hallmark of an effective lawyer.
Beyond these two criteria, you should select a lawyer that you feel comfortable working with and who has substantial experience in your area of need. If you are facing a criminal case or investigation, hire a lawyer who specializes in criminal defense, not a civil litigator who takes a few criminal cases. Federal and state criminal cases and procedures are very different, so if you have a federal case make sure that the lawyer regularly defends federal criminal matters.
You do not want a state-court lawyer using your case as a chance to “learn the ropes” in federal court! The stakes are much too high. If you are not a U.S. citizen, either hire a criminal defense attorney who thoroughly understands U.S. immigration law (like us) or be prepared to hire an additional immigration attorney to advise the criminal attorney on how to handle the case to prevent deportation.
How much will it cost to hire a lawyer?
Fees for criminal cases vary widely depending on the client, lawyer, and case. Abraham Lincoln once said that “time and advice are a lawyer’s stock in trade,” and most attorneys will charge their clients through an hourly fee. Criminal defense attorneys sometimes offer “flat” fees that cover all or a portion of a case for a set fee, regardless of hours worked. Either way, fees generally range from a few thousand dollars for a simple misdemeanor case to five-figure amounts in felony cases and six-figure fees in particularly serious or complex cases that require a great deal of work. Trials are especially time-intensive and thus expensive, as are many federal criminal cases.
Do not simply hire the lawyer with the lowest price and assume that you are getting a good value. How much is a year of your freedom worth to you and to your family? Lawyers, like doctors, are an unwise place to try to cut costs. That said, the most expensive lawyer is generally the one with the highest overhead costs, not the best trial skills. Try to find the right lawyer for your case and understand that the fee is an investment in your future.
What if I cannot afford to hire a lawyer?
If you are charged with a crime but cannot afford to hire a lawyer, the court will appoint a lawyer to represent you for free. This will typically be either a public defender or a private attorney who has agreed to represent indigent defendants in exchange for below-market payment from the court. These lawyers often have substantial criminal defense experience but are frequently burdened with overwhelming caseloads and may not be able to devote as much time to your case as you (or they) might like.
The quality of appointed counsel varies enormously from courthouse to courthouse and even within defender offices. If you feel your appointed lawyer is not up to the job, you can try to hire your own attorney or request the court appoint new counsel for you.
My lawyer is not doing a good job. What should I do?
First, have an honest conversation with your lawyer. Explain the problems you have with their work and give the lawyer a chance to explain their actions (or inaction). Your lawyer should have a clear and coherent strategy that they can share with you, and a good lawyer has an articulable reason for everything they do (or decide not to do).
If that does not resolve the issue – or if you cannot get the lawyer to speak with you – talk to another lawyer and explain your case and the problems you are having with your current lawyer. A good doctor always supports a patient’s decision to seek a second opinion (what’s the harm?), and a good lawyer should not be threatened by your decision to look for additional advice. The lawyer’s case file belongs to you, the client, and you can direct your lawyer to share its contents with another lawyer to review his or her work and help you determine if you should seek new counsel.
If you have an appointed lawyer, you have the right to fire your lawyer if the lawyer is not performing adequately or if your relationship deteriorates to the point that you cannot effectively communicate with one another. Inform your lawyer and the judge of this breakdown, and the judge will ask questions of both defendant and lawyer to determine whether a new lawyer should be appointed in the case.
I have been served with a subpoena. What should I do?
Call a lawyer. A subpoena is a legal order compelling you to either testify or to produce documents and things (called a subpoena ‘duces tecum’). If it has been issued by a grand jury or government agency, it may be related to an ongoing criminal investigation. You can potentially incriminate yourself or people you care about by producing documents or answering questions under oath, and you can expose yourself to serious criminal charges and make your situation far worse by lying or destroying evidence.
A lawyer may be able to challenge the subpoena in court through a motion to “quash,” can advise you about whether you should invoke the 5th amendment right to remain silent, and will prepare you to testify effectively if you ultimately decide to do so. Your attorney can also negotiate with whoever issued the subpoena to amend its scope, timing, conditions, etc. Where a subpoena seeks your personal or business records, an attorney can review those records to determine whether they must be turned over or some exception applies. Bill Clinton and Barry Bonds were both charged with crimes based on statements they made to grand juries – it is not a crucible you should face alone.
I am in jail or prison and vulnerable to COVID-19! Is there a way out?
There may be. The Constitution guarantees the right to “reasonable safety” while in custody, and individuals who are older or who have pre-existing health conditions are not safe inside a prison during the pandemic. Cramped and unsanitary conditions in prisons cause the virus to spread quickly through the population, and access to health care is limited.
For people awaiting trial, the pandemic is good cause for a judge to grant or reduce bond, and vulnerable people who find themselves in custody should have their attorneys seek immediate release on bail.
For people serving time in federal prison, there may also be a way out. The First Step Act, which was signed into law at the end of 2017, gave federal judges the legal authority to grant “compassionate release” to any federal prisoner who demonstrates “exceptional and unusual circumstances” or who meets specified age or health criteria. Prior to December 2017, only the federal Bureau of Prisons (BOP) had the power to grant this type of release – and they seldom did. But thanks to the First Step Act, federal judges around the country have granted compassionate release to hundreds of federal prisoners since the start of the coronavirus pandemic, often with many years (or even a lifetime) remaining unserved.
Judges also now have the power to “recommend” that BOP release a prisoner to home confinement for the remainder of their sentence, a recommendation which carries teeth because the judge can grant compassionate release if BOP disagrees. A request for compassionate release and/or home confinement must first be submitted to the warden of the facility where the inmate is located, and a federal judge has the power to grant the request starting 30 days after the request is made. The process is reasonably fast (for litigation) – a ruling is typically received within 30 to 60 days of filing a request.
Every federal prisoner – and particularly any prisoner who suffers from pre-existing health conditions that make them vulnerable to COVID-19 – should consult with counsel about petitioning for compassionate release. We have helped numerous clients obtain compassionate release from federal prison and salute the defense attorneys around the country who have worked to bring their clients home safely.
For individuals serving time in state prison, available forms of release vary by state. In California, state officials released 3,500 of over 100,000 people held in California in April, and they plan to release more prisoners nearing the end of their terms. There is no process, however, for individual review and release on health grounds: prisoners can seek release by challenging their convictions through habeas corpus or other legal avenues or through the parole board.
 18 U.S.C. § 3582
Can I expunge my old convictions to clean up my record?
Federal law does not provide an avenue for expunging old criminal convictions. However, section 1203.4 of the California penal code provides that anyone who is convicted of a crime in California state court, is sentenced to probation rather than prison, and complies with the conditions of probation (that is, does not have any violations) is eligible to have their conviction or guilty plea withdrawn, the judgment set aside, and the case against them dismissed.
This provision does not apply to serious felonies and does not eliminate all the consequences of conviction: your “expunged” case can still be alleged as a prior conviction if you are charged again, and people convicted of felonies and certain other offenses are still prohibited from possessing firearms even if those convictions have been expunged. However, it does permit you to legally say that you have not been convicted of a crime and to escape some of the serious collateral consequences that a criminal record can impose. Another statute, § 851.91, gives you the right to have your records sealed, and you may be able to get some relief if that applies in your case.
If you comply with all conditions of probation, you have a right to have your conviction thrown out and the case dismissed. You may not need a lawyer if your case is very straightforward: most people can simply fill out this form and send it to their local court. If you had any probation violations, or if you received a prison sentence served in county jail, however, it is up to the judge to decide whether to set aside your conviction. You should hire a lawyer to give you the best chance of cleaning the slate.
I am not a U.S. Citizen, and I have been charged with a crime. Could I be deported?
Yes. Many felonies and even some misdemeanor criminal convictions can result in deportation for legal permanent residents who have spent decades in the United States. Whether a criminal case will result in deportation depends on the specific charges of conviction and sometimes even the details of how a plea is entered in court. There is little rhyme or reason as to what specific offenses trigger deportation: Some very serious crimes are immigration “safe,” while other seemingly minor charges can result in permanent exile.
Only a lawyer with a deep understanding of the intersection between U.S. criminal and immigration law can help you through this minefield to reach an outcome that will keep your legal status – and your family – intact. This is one of our areas of expertise. We are frequently consulted by clients and attorneys in cases involving non-citizen defendants. Sadly, most criminal defense lawyers are not intimately familiar with immigration law (which is fiendishly complex), and as a result, untold numbers of defendants have unknowingly and unnecessarily pled guilty to charges that resulted in their deportation. If your attorney does not have substantial immigration law experience, you will need to retain an immigration lawyer to guide them.
Immigration is trying to deport me based on a criminal conviction, is there anything I can do?
Yes, give us a call. While an ‘expungement’ under section 1203.4 does not matter for immigration purposes, there may be other ways to amend or attack your conviction in criminal court that will prevent it from being used against you in immigration court. We have prevailed in numerous habeas corpus petitions and other motions seeking to set aside convictions, amend sentences, or otherwise modify criminal cases to prevent clients from being deported. If you are facing deportation as a result of an old criminal case, give us a call.