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.
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.
