Mark Bennett at Defending People posts about taking cases where the client wants to pay out legal fees over time.  He won’t do it.  Mark’s reasoning is that he doesn’t finance his own representation, and “if nobody you know will loan you the money to pay my fee, why would [he]?”

Mark’s rationale is sound and accurate.  Lawyers aren’t banks.  We don’t give loans to our clients so they can pay us (and conversely, we can get their case).  On the other hand, given the cost of a real criminal defense, it is usually far beyond what many clients have on hand or available to them.  Many people just aren’t readily liquid in anticipation of an arrest, and their friends and family may well be in similar shape.  It’s not that they don’t have it, or that their family doesn’t love them, but that they can’t get it in time to retain a competent lawyer. 

This leaves clients in the unfortunate position of either having to go with a lawyer who is talking “fight” but charging “plea”, or just one of the basic pretenders who won’t let a dollar bill walk out of their office.  Neither is good for the client or the profession.

While I don’t disagree with Mark in general, I approach the problem from a different direction.  My experience is that money can be the most divisive factor in a lawyer-client relationship.  Once you get past the acute phase (the arrest), clients and family settle down a bit into the painful hiatus of waiting for the case to unfold.  When the pressure is off, the sense of urgency changes.  Suddenly, your client who needed you so desperately becomes more aware of the money issues, and the pressures for money from other areas of his life. 

It’s not that the promises of payment were not heartfelt when made.  It’s that things change.  Unforeseen changes occur.  Priorities change.  At least for the moment.  And when the day comes that payment is due, the client appears in the office, face down and feet shuffling, and then comes the inevitable announcement: “I don’t have the money.”  You remind them of their promise, but the only response is “but I don’t have it.”

This creates a huge rift in the attorney-client relationship.  No longer are both part of the same team, determined to win a case.  Rather, they are now adversaries in a soured transaction.  Clients avoid calls from lawyers because they are embarrassed about nonpayment.  Lawyers spend time trying to collect their fee instead of working on the case.  Or lawyers just stop working when the fee isn’t paid.  Either way, it’s unproductive time. 

Even when clients pay up late, time and opportunity is lost, and a relationship has problems.  There is distrust and often some anger.  There were needs to be filled in the defense during the period of nonpayment that were never filled.  Investigations that were never performed because there was no money to pay for them.  Research that should have been done but wasn’t.  information needed that could not be gotten when phone calls weren’t returned.  You can’t make up for things that went undone when payments are finally made far after they were due. 

There was a time that I was inflexible about taking payments over time, and I lost more than a few cases (and upset more than a few potential clients) as a result.  I’ve become more flexible about it, mostly of necessity.  Even clients in white collar cases, with big houses, fancy cars and country club memberships, have problems getting the money together to pay the legal fee.  Sometimes, more than non-white collar defendants.  I have no desire to chase away clients or lose interesting cases.  I also have no desire to work for free.

My position these days is to work things out with potential clients to the extent it seems reasonable for both of us.  I keep a very tight rein on payments, with relatively short time frames so that things never get too far out of control.  I make it very clear what it mean to create this rift between attorney and client, and the impact to them of their failure to pay.  It becomes one more choice that they have to make in whether they want to maximize their likelihood of success or failure in defending against the charges.

For the most part, clients have been quite good at fulfilling their financial obligations, recognizing that it’s in their best interest to avoid unproductive problems (they have enough “productive” problems already).  The few who show up with heads down and feet a’shuffling are inevitable.   Then it becomes a matter of tough love.  They know the ramifications of making a promise (I always tell clients, after the payment terms are mutually agreed upon, that it is their responsibility to do what they agreed to) and not keeping it.  Their answer is always the same, they don’t have the money, and my reply is always the same, that can’t be my problem.