Sunday, March 18, 2012

Diversion Program Issues

“If you tell the truth, you don’t have to remember anything.”Mark Twain

I have often wondered why some people take the time to find the right criminal attorney to represent them, sign paperwork, pay them, etc., and then feel the need to be dishonest. If I am the one who is going to represent you and defend you diligently regardless of your crime, it would be best if you were upfront with me.  No?

Let me share a great example of what happens when clients lie to their attorney.  Perhaps in reading the outcome some people will think twice if they are ever asked the following question:

  “Have you ever been arrested for a crime in Florida or anywhere else in the world?

I have clients come into the office all the time and one of the first questions that they are asked on their intake sheet is the question, "Have you ever been arrested? Have you ever been convicted?"   “No, Mr. Foley, I swear” and “Nope, my record is clean” are often their response.

The reason this question is asked to my client is because if they have not been arrested and they are truly a first-time offender, they may be eligible for some type of diversion program.

“What is a diversion program?”  First off, let me state again, it is for first-time offenders only.  So, if you have racked up a few misdemeanors or felonies convictions, you are ineligible.  Diversion programs are great for those who have been arrested for their first offense, and if the offender follows all of the stipulations set forth for the duration of the program (usually 6-12 months), then the case is dismissed and life continues on.

What is involved in applying to a diversion program?  That is where I come in.  Not every crime is eligible and some crimes are admitted on a case-by-case basis.   Entering any diversion program requires paperwork, background checks, and contacting the department of corrections, supervisor signatures, and several court dates.  It takes time and patience, and as I mentioned earlier, there are a lot of forms that come along with the process.  It is worth it for someone who is a first-time offender, as it is a guaranteed victory for someone who follows the rules and has no previous arrests or convictions.  If the offender does everything requested of them then the case is dismissed.  No attorney, no matter how great they are in the courtroom can guarantee you a victory but once in a diversion program, it is guaranteed that your case will be dismissed if you adhere to the rules.

Here is where the aggravating part comes in:  I start every conversation with my clients by telling them that what they say in my office is confidential.  I try to get to know each client and make them feel as comfortable as possible.  Why do some clients lie to me?  I wish I knew the answer to that.  What is frustrating about a client doing this in regards to the diversion program is that I have spent months filing paperwork, making phone calls, kissing the ass of supervising attorneys at the State Attorney’s office, and often going to several court appearances while I wait for a document that say my client’s request to enter a diversion program is granted.  I wait and wait only to receive a letter for the State Attorney’s office and Corrections that my client is ineligible because they have previous been arrested and have a criminal record.

Because this has happened repeatedly, I have had no choice but to do something about it.  Now, all of my contracts let the client know that if you lie to me and I spend time trying to get you into a diversion program and you are not admitted because of a prior arrest, then my work for you is complete, you do not get a return on your money.  If you wish, you can re-hire me as your lawyer for your case that will now be fought in a courtroom.  End of story.

There are a few particulars that I want to mention about diversion programs.  Many diversion programs are discretionary.  It is up to the prosecution to make that decision.  Sometimes juvenile records are used against you when applying to a diversion program, sometimes they are not.  For example, if you are 21 years of age and are arrested for the first time as an adult you would think that you are eligible to enter a diversion program.  That is not always correct as the state attorney can and often does look at your juvenile record and that juvenile record can prevent you from entering a diversion program.  Remember, it’s not a right it’s discretionary.

Second, if you are lying about not having any prior arrests or convictions, I will find out eventually.  One client recently told me they had no priors, only to find out they were an eight time convicted felon!  No surprise he was not eligible for a diversion program.

Remember, an attorney can withdraw from any case if they cannot effectively communicate with their client. Do you find it easy to effectively communicate with someone who is lying to you? Me neither.  Please, just be upfront and I will give you my best.

If you read this far, I want to thank you for taking some time to hear what I have to say and hopefully you learned a thing or two about the legal system.  I do not consider myself the next award winning writer, but I do like to discuss a variety of subjects on my blog and this was one that I thought was important.

Thank you.

If you have any questions regarding pre-trial diversion programs for either Felony or Misdemeanor cases contact The Law Office of Roger P. Foley, P.A.

1 comment:


I wait and wait only to receive a letter for the State Attorney’s office and Corrections that my client is ineligible because they have previous been arrested and have a criminal record.
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