The Moral Frustration Of Charging A Fee
Norm Pattis describes well the inherent conflict that most private criminal defense lawyers feel when a person in need rings them up.
The contrast between the law's soaring ideals and the more prosaic reality of paying the bills intersect at the moment the attorney-client relationship is formed. Yet in all the great and not so great fiction about lawyers and the law, fees are almost never discussed. . . Why the silence about fees?
I suspect it has to do with a certain moral ambiguity. There is nothing edifying or easy about asking a person in trouble for money. The ideal of a lawyer as crusader for justice does not easily square with the image of the esquire as businessman. "Sure, sir, I will be happy to defend you, but first on the matter of my fee ..." This is a difficult transition.
Boy, is it. Informing a human being that there's a price tag connected to the defense of his case is one of the most difficult hurdles that a criminal defense lawyer has to leap. No one wants to turn away a person in need, unless they are so fundamentally mercenary that they lack basic human feelings. But as Norm points out, there are some hard realities to address:
Our firm typically charges flat fees for criminal cases. I wonder, sometimes, whether that makes sense. The client buys an ideal, and with it the limitless sense that the lawyer is available 24-7 to discuss his thoughts, feelings, fears and goals. The lawyer, on the other hand, remains bounded by the realities of running a law practice: the demands of trial in another's case, the need to pay the bills, manage a staff and attend to the needs of his other clients.
But here is where there are differing views. Norm reviews my posts about "managing" the "big fee" client.
Scott at Simple Justice has written in recent weeks about the demands of the so-called big fee client. I read his pieces with a gnawing sense of frustration. There really ought not to be multiple standards for clients: all, regardless of fee, should get the same level of commitment and care. But Scott raises an honest point: the market in human suffering is price sensitive. Client's with unlimited means get unlimited time from their lawyers; those with more limited means get less time. The reason is simple: like it or not, time can be transformed into money, and necessity governs a law practice.
While it's understandable that Norm would draw this conclusion, it's not the way it fleshes out. While fees vary based upon the experience of what will be required to represent a given defendant in a given case, experience also teaches that things often work out differently than expected. Once a case is accepted, and utterly without regard to fee paid, the work must be done. If the fee is insufficient to cover the amount of time necessary to perform the work, then that's my burden. The client has done all that's asked of him, and the risk of there being more work, sometimes far more, than anticipated is my responsibility alone.
This doesn't mean, however, that the hand-holding, middle of the night anxiety phone calls are taken with equanimity. That's not lawyer work, and while it may be part of the job to help the client to understand and appreciate the situation, it's not a 24/7 therapy session. If the client's anxiety sucks up time that impairs my ability to handle the lawyerly work for which I'm retained, then the client is told as clearly as possible that it's not going to be tolerated. It's not a lack of empathy, but a matter of necessity. There are still only 24 hours in a day, and if they're all used up listening to the client's worrying, then there's nothing left for the lawyering. He loses.
But this is as equally true of the big fee client as any other client. It's a matter of creating a clear understanding from the outset about what the job is, and what the client is paying for. If he needs a therapist, then he's come to the wrong place. If he needs a lawyer, then we're on the same page.
Every client, however, whether the legal fee is a million dollars or two cents, receives every bit as much legal representation, meaning time performing the function of a lawyer, as is needed to provide the best possible defense. There's no clock ticking in the background that tells me that the time a client's paid for has run out, and I move on to the next, higher-fee-paying client. When I take on a case, I take on the responsibility of fulfilling my duty to the client to provide a zealous defense, regardless of how much time that takes. There's no wiggle room on my part; I owe the client no less.
This doesn't alter the moral frustration of having to either be paid a fee or take a pass. The other day, I received a telephone call from a young woman who found me via Avvo.* She had a warrant because she neglected to perform the community service imposed for a minor offense. She had left the state. She couldn't remember the name of her lawyer. Her mother was very angry with her. She had no money. What should she do?
Put aside the fact that all her problems, and there were many, were entirely of her own making, and grounded exclusively in her own remarkably poor choices. She clearly needed some help. I understood and felt badly for her, but I could offer her nothing. It's not that I didn't know what to do to help her. That was a fairly easy question. It was that my doing what was necessary would have impaired by ability to defend the people whose cases I have already taken, who have paid my fee, who are depending on me to put in the time to do everything in my power to help.
That people call with problems that they've created for themselves, in need of help and with nowhere to turn, doesn't surprise or bother me. One of the fundamental themes in this business is that people do incredibly stupid things all the time. We try to help them and simultaneously teach them to make better choices so that they don't continue to do stupid things. We don't blame them for being human, or leave them to hang because their problem are of their own making.
Limits, however, are imposed by the harsh master of reality. I'm not a public defender, and I cannot defend my clients if I try to be all things to all people. It's not that I don't care. It's that it isn't possible, so choices have to be made. I will do everything I can to defend my client, whether he's paid the big fee or not. But something has to give.
By no means do I assume that I've mastered the balance to achieve some element of moral balance, but I firmly believe that a line must be drawn if we're to fulfill our duty to the clients whose cases we take on, and survive. This is where I've chosen to draw the line.
* When I went for the link to my profile page on Avvo, I saw that a paid advertisement for Tony Colleluori, his face smiling at me, was just to the left of my free profile. I hadn't been aware of this, since I have no reason to go to my Avvo page in the ordinary course of affairs.
However, now that I know that Tony actively seeks the telephone calls that I do not, so much so that he's willing to pay to get them from people who have chosen to take a look at my profile, I will be more than happy to refer the callers directly to Tony. Plus, he's available 24/7, and I go to sleep pretty early and really don't care to be woken up by telephone calls in the middle of the night by people asking for free advice.
No need to thank me. It's my pleasure to help.
This doesn't mean, however, that the hand-holding, middle of the night anxiety phone calls are taken with equanimity. That's not lawyer work, and while it may be part of the job to help the client to understand and appreciate the situation, it's not a 24/7 therapy session. If the client's anxiety sucks up time that impairs my ability to handle the lawyerly work for which I'm retained, then the client is told as clearly as possible that it's not going to be tolerated. It's not a lack of empathy, but a matter of necessity. There are still only 24 hours in a day, and if they're all used up listening to the client's worrying, then there's nothing left for the lawyering. He loses.
But this is as equally true of the big fee client as any other client. It's a matter of creating a clear understanding from the outset about what the job is, and what the client is paying for. If he needs a therapist, then he's come to the wrong place. If he needs a lawyer, then we're on the same page.
Every client, however, whether the legal fee is a million dollars or two cents, receives every bit as much legal representation, meaning time performing the function of a lawyer, as is needed to provide the best possible defense. There's no clock ticking in the background that tells me that the time a client's paid for has run out, and I move on to the next, higher-fee-paying client. When I take on a case, I take on the responsibility of fulfilling my duty to the client to provide a zealous defense, regardless of how much time that takes. There's no wiggle room on my part; I owe the client no less.
This doesn't alter the moral frustration of having to either be paid a fee or take a pass. The other day, I received a telephone call from a young woman who found me via Avvo.* She had a warrant because she neglected to perform the community service imposed for a minor offense. She had left the state. She couldn't remember the name of her lawyer. Her mother was very angry with her. She had no money. What should she do?
Put aside the fact that all her problems, and there were many, were entirely of her own making, and grounded exclusively in her own remarkably poor choices. She clearly needed some help. I understood and felt badly for her, but I could offer her nothing. It's not that I didn't know what to do to help her. That was a fairly easy question. It was that my doing what was necessary would have impaired by ability to defend the people whose cases I have already taken, who have paid my fee, who are depending on me to put in the time to do everything in my power to help.
That people call with problems that they've created for themselves, in need of help and with nowhere to turn, doesn't surprise or bother me. One of the fundamental themes in this business is that people do incredibly stupid things all the time. We try to help them and simultaneously teach them to make better choices so that they don't continue to do stupid things. We don't blame them for being human, or leave them to hang because their problem are of their own making.
Limits, however, are imposed by the harsh master of reality. I'm not a public defender, and I cannot defend my clients if I try to be all things to all people. It's not that I don't care. It's that it isn't possible, so choices have to be made. I will do everything I can to defend my client, whether he's paid the big fee or not. But something has to give.
How to balance the needs of clients and the need of a firm for fees is a challenge I have yet to master after many years of trying. It is a discouraging reality that even legal fiction refuses to address.
By no means do I assume that I've mastered the balance to achieve some element of moral balance, but I firmly believe that a line must be drawn if we're to fulfill our duty to the clients whose cases we take on, and survive. This is where I've chosen to draw the line.
* When I went for the link to my profile page on Avvo, I saw that a paid advertisement for Tony Colleluori, his face smiling at me, was just to the left of my free profile. I hadn't been aware of this, since I have no reason to go to my Avvo page in the ordinary course of affairs. However, now that I know that Tony actively seeks the telephone calls that I do not, so much so that he's willing to pay to get them from people who have chosen to take a look at my profile, I will be more than happy to refer the callers directly to Tony. Plus, he's available 24/7, and I go to sleep pretty early and really don't care to be woken up by telephone calls in the middle of the night by people asking for free advice.
No need to thank me. It's my pleasure to help.
This post is a really good description of the moral frustration I deal with all the time.
I represent people who are in danger of losing their homes because they didn't make their mortgage payments.
Some of the people who call me can afford to pay me, because they have an income and they are not paying their mortgage. Some of them can't afford to pay because they have become unemployed or underemployed. Although I take some pro bono work, I have to turn some people away in order to do a good job for the clients I already have.
Friday I met with a woman in her 70's, wheelchair-bound and with a 7th grade education. Her home is scheduled to go to foreclosure sale next week. Last summer she retained a local company to help her get a mortgage modification. They negotiated a reduced rate for her, and she made half a dozen payments They also collected payments for themselves, but never got a signed agreement with the bank. And they kept telling her they were taking care of the foreclosure papers she was getting from the court.
The bank returned her last reduced-rate payment. She gave that money to the "foreclosure repair" company, and now they aren't returning her calls. She really could be homeless three weeks from now.
The effort to solve this woman's problem will take a lot of work in a very short amount of time. I already have three pro bono cases that are "hot" right now.
I'm going to draw the line, but I wish I didn't have to.
Reply to this
A word of caution that I learned the hard way. Mention online that you do pro bono and you just made 1000+ new bestest friends. They can get very unpleasant when they learn that you can't help them.
Reply to this
I've always wondered how you would choose pro bono clients, is it just a matter of the cab rank rule when you have a space in your calendar or is it more of a choosing process than that?
Reply to this
For me, it's a matter of timing (do I have time for a charity case? can my other clients afford it?), interest (does it appeal to me?), and potential (can I do some good?).
I'll take a case on charity if the client really needs me and wants to hire me, but can't. But I don't take the cases of people asking for charity. It's been my experience that such people think they're entitled, and don't appreciate what they are getting.
Reply to this
It's less a matter of space for me than the sense that it's someone I chose to defend. And like Bennett says, it's never the person who asks for it. That never works out well.
Reply to this
One word: passion
Reply to this
I agree that once you're in, you're in, and the burden of the unexpected falls on you. I have never asked to be relieved on the basis of under-payment or hardship, though I'm currently dealing with a real jerk and I reserve the right to in an extreme case.
We all draw our lines about what we sacrifice for a client, but I don't think there's a hard and fast rule and it varies a lot depending on the case. Some clients may require and deserve a lot of hand holding and that may - not must, but may - fall to the lawyer and in some instances I think it is properly part of the lawyer's job.
If a case looks like it is going to trial, I personally think it is critically important to know everything about the client. Not just their history and objective facts about them, but their thoughts, emotions, reactions. You can never know too much. You can never know which detail about them might convince a jury to acquit, but if you don't know that detail you can't figure out what it might be and present it the right way, can you?
This is a hard job, and in a lot of cases there is simply no way to get paid what you ought to get paid. Yet it certainly is a sad moment when you have to look at someone in a lot of trouble who has come to you for help and tell them that they have to cough up everything they own, everything they can get their hands on or borrow, and that you can't guarantee a thing in terms of an outcome.
Reply to this
Of course, living in a terribly socialist state where we have no freedoms (we can't even tote guns for gawdsakes) we don't have these concerns as (although things are changing) legal aid is available for all but the least serious offences, whatever a persons income.
However, I am interested to hear it is critical to know a persons thoughts, emotions and reactions in order to "convince a jury to acquit". I must admit I never have. Proof of evidence and a con or two and I'm usually more than happy.
If acquitted, can the accused claim any of your fees back from the state?
From across the pond
CrimeCounsel
Reply to this
Of course, after acquittal, the accused can claim the entire legal fee back from the state.
Unfortunately, that will only make all the state people roll on the floor laughing.
Reply to this
I'd personally argue that Britain is actually a constitutional monarchy rather not a socialist state.
I think what you're meaning there is "totalitarian state", rather than "socialist". Socialism is a word that's had a horrible time of it lately.
Reply to this
I don't think you'd have to argue it Stephen. Britain is not a Socialist state. It is a constitutional monarchy.
And yet, I didn't mean "totalitrarian state", I meant "socialist".
Thanks though.
(sarcasm off)
Steve... I was alluding to the recent Republican attacks of President Obama's health reforms, that they are socialist, and their attacks on our NHS. I used this literary device to suggest that the American reader might suffer outrage to learn we also have a system in which I get paid just as well by the state, whether the accused has no money, some money or loadsa money.
I also embellished my desire to tote guns. I have no such desire.
Reply to this
Ah, sorry, on re-reading I'm surprised I missed that. We're actually reacting to exactly the same cause - my defence of what socialism means is because of the Republican attacks on health reform.
I like language and it's terribly, terribly sad to me to see what's being done to "socialism." It's got to the point where it's reflexive for me to see "socialist" and "no freedoms" together, sigh and immediately point out that socialism doesn't mean what the tea party thinks it does. Satire was an unintended victim this time.
Reply to this
I thought as much.
Reply to this
Hi CrimeCounsel.
Let me clarify. When you investigate properly you wind up with a lot of information that you never use because it's irrelevant or whatever, but you don't know in advance which information is which, so you get everything you can, unless or until the evidence you have is what we call "dispositive".
And even then, if you're the defendant, you're not done yet. If the evidence is really, really good and will defeat the prosecution's case, the judge will most often preclude you from offering it, so you have to come up with a way to offer devastating evidence without letting on how devastating it is.
And a defendant's thoughts, emotions, and reactions would be really important if he takes the stand in his own defense. There are a million things that could go wrong that you have to try to avoid.
Reply to this
In an attempt to relate this back to the original post, perhaps the English system might assist you in being more efficient in your pro bono practices.
When a client is privately paying, and has a limitless pocket, then to chase every wild goose and to double dot every I is not only good business, it is what is expected.
But where (in our case the state) you are effectively paying, then a balance exists between what could be done and what should be done. Over here our investigators (solicitors) must, outside of what is the norm, justify their expenditure in relation to reasonableness and relevance, in proportion to the seriousness of the case.
I see no conflict between this and justice, and in fact I must admit a nagging doubt that anything else is necessary in the paying client's case (other than to ensure a maximum return for the investigator).
But then I learn that over here our disclosure rules are such that we have a far better idea of the case we are going to try and answer and so we can be far more direct in our investigations.
That your judiciary would preclude evidence simply because it is devastating to the prosecution case is a real eye-opener. Add that to not getting your money back for a wrongful prosecution, and I must remember not to risk even getting arrested next time i'm over there, never mind committing a crime.
Thoughts, emotions and reactions - we don't rehearse witnesses, even defendants over here so I will not know how he will react to questions etc. This is how it should be in my view, but I freely admit it didn't help the time I asked my convicted child abuser client why he was (on release) touching children. His answer "to arouse them" certainly made the Judge wake up, and me very nearly throw down my pen in frustration and leave.
From the land of your forefathers.
CrimeCounsel
Reply to this
Nice blog.
Reply to this
It's a good point, that if we set our fees too low we are doing a disservice to the clients we already have.
Reply to this