When Do I need an Attorney?

Recently, I was out flying near Arlington practicing the NDB approach. I was procedure turn inbound and I was attempting to make my turn onto the final approach course perfect. I don't know why I can't do it as well on the NDB approach as do on the VOR approach, but I never seemed to have mastered the perfect turn onto an NDB approach.

So, while I was concentrating on watching the ADF needle drop down to the 45 degree mark, I heard the controller query another pilot who had just gone missed at another airport close by. I've changed his N number for privacy. For the guy who has N12345 as his N-number. Sorry, it's not you.

Controller: "N12345, report your altitude."

N12345: "4,000 feet for the hold"

Controller: "Why are you all the way up there? I didn't tell you to go up there. There is traffic in the way"

N12345: "Well, we came up here after the missed approach"

Controller: "I don't recall giving you missed approach instructions, did you copy them down?"

N12345: "Uh, no."

Controller: "I did not give you any missed approach instructions. You should have gone by the published missed approach. You are flying IFR."

N12345: "Uh, sorry, we were trying to avoid traffic."

Controller: "Well, now you are in the traffic. Turn 190 and descend immediately to 2,500."

N12345: "Turn 190, descend to 2500."

The controller went on for another few minutes about safety and the importance of following instructions. I haven't been able to quite capture the tone of the controller's voice, but it was clear that this was more than just a mere miscommunication error between the pilot and center. I also heard the controller diverting other traffic as this guy came up into some congested airspace.

Naturally, as I listened to all of this, I blew the perfect turn and started it too late. I had to come back into the final approach course.

But, it also became painfully obvious, that the controller was really upset and it would not be surprising if this guy gets a letter from the FAA.

Which brings me to the point of this blog.

When do you know you need an attorney?

It is hard for us to individually recognize when we need an attorney and that is for two reasons. (1) We consider the use of an attorney as something to protect us when we've done something wrong or gotten in over our heads, and (2) attorneys are expensive. Nobody ever wants to pay an attorney. Because what do you get for it? Advice? Yippee Skippee, anybody can give advice. I get it all day from anyone and everyone.

This would be a good time for you to stop nodding your head. I was being fecetious.

The moment you even consider that you might be the target of an FAA enforcement action is when you need an attorney.

If the controller is yelling at you and continues to yell at you, this is a not good sign. If you get a call from the FAA, asking you to explain something, another bad sign. If your friend at the airport says someone was coming around and asking questions about your flying, this is a very bad sign.

The time for you to get an attorney is right away. Now, I tell you this not because I'm biased, which I am, but because an attorney has the knowledge and expertise to nip this matter in the bud before it gets too far and you come knocking on his door. Ever hear that the best medicine is preventative medicine? The same is true here.

An attorney is skilled in this partciular area and knows what to say, when to say it, and more importantly, what not to say. An attorney is an objective party who is not caught up in the stress of the situation the same way you are.

Now, attorneys are expensive. But look at it this way, would you want a cheap attorney? If you are going to have to spend some money to protect your certificate, you want to be able to have someone on your side who can advocate for your position. Some people don't want to pay for an attorney's advice because it isn't tangible. You don't get anything you can touch or hold for your money. But consider this, your certificate is a very tangible thing and the loss of being able to fly, a pursuit which you spent thousands of dollars on and countless hours to obtain, is very tangible. Besides, your attorney hopefully went to law school, thus making him deserving of that high hourly rate, he also probably has student loans to pay off for all that education.

Don't wait until it is too late. Going to see the attorney after the FAA has brought the hammer down you is like closing the barn door after the fact. Your FAA defense attorney is going to be able to shape your case from the start which is exactly what you should be thinking when you first get the idea you might be the focus of involvement.

Of course, as airmen, we're a helpful group. We all believe in following the rules and we are generally law abiding citizens. It's not like getting caught for making a mistake while flying is the same as robbing a convenience store. Those guys are criminals, we're not!

But, you need to think about it in terms of what the FAA sees. They see an FAR violation. Since there has been a violation, there must also be consequences. These can range from a letter to license suspension, and yes, even in some cases, criminal charges.

What you see as a small mistake, they see as part of their job in the enforcement spectrum. You cannot expect them to be as understanding as you would be because in your mind, it just wasn't that big a deal. When you buzzed the tower, no one was hurt, no damage was done, no harm ,no foul, right? Wrong, the FAA says you operated in a reckless manner and now you are going to be punished.

But we don't see it like that so we try to explain things to the FAA from our perspective because surely everyone else shares our perspective right? Wrong. Remember this, whatever you say, can and will be used against you in your FAA enforcement action.

I wish I received more calls from clients who simply wanted to know if they might be a target and could I help them out now before they are actually charged. Because the truth is I can do that. I can talk to the investigator, I can do all the interviews and I can shape the issues that must be dealt with before it gets too late. Often times, we can resolve all the issues at the informal meeting between you and the FAA, if it even gets that far.

I know what you're thinking. If I have an attorney represent me, it's like an admission of guilt. Listen, get over that right now. The FAA has a legal department and they get to run things by their counsel, why don't you? Having an attorney on your side, a good aviation attorney, who understands the place and need for knowing when to push and when to negotiate, is going to do nothing but make the FAA more prudent and cautious in their actions. The other advantage for the airmen is that when the attorney talks on behalf of the client, their is no incriminating statements being made that will later come back to haunt the airmen.

I would have loved to told all of this to that guy who blew his missed approach protocol, but for some reason the State Bar frowns on soliciting client's like that. They call it ethics. I can't imagine that the controller would have appreciated the interruption either, but that guy needs an attorney to represent him and he needs it now. I hope he doesn't wait until it's too late.

No one ever wants or expects to be the target of an FAA enforcement action, but it is going to happen to someone. If you think it might be happening to you or someone you know. Do not wait until it is too late. Take preventative action today. Your ticket is worth it.