Brian Tannebaum posts about lawyers who take a part of their fee up front with the balance to be paid over time.
But cash flow is slow, you need the case, and you’re OK getting $1,500 down on a $5,000 fee, because you really need that $1,500 right now.Brian speaks to the fault for this scenario, which belongs entirely to the lawyer. My focus will be on the last phrase of the quote, that “most of the conversation” is about getting paid.
A month later that first of seven $500 payments doesn’t come. You hope the judge will give you enough continuances to get paid, and you’re looking for a way to convince the client to pay his fee. In the end, you’ve received $2,500, you hate your client, and most of the conversation with him is about “when” he’s going to pay.
Consider the situation, a defendant charged with a crime and desperately in need of your legal assistance. Instead of talking about the evidence, the witnesses, the defense theory, the conversation revolves around money. Where’s the money?
Most of the time, there’s an issue with clients calling too much. When the client owes money, he doesn’t call at all. In fact, he won’t take your calls, for fear that it will be another embarrassing, unpleasant telephone call about paying bills and keeping promises. He doesn’t want to hear it. He knows he owes you the money. But there’s always a “but,” a reason why he can’t.
Maybe he just doesn’t have it. He thought he would. He really did, but he doesn’t. He tried really hard to get it, but he just doesn’t have it. The baby needed pampers. The rent was due. He was out drinking with his buddies. A man’s got to have a little fun, you know. Whatever. If it was there, it’s gone. If it wasn’t there, you can’t get blood from a rock. Either way, there’s nothing to give you.
What are you going to do about it?
In the old days, a lawyer would let the judge know that he wasn’t ready for trial because he was waiting for “Mr. Green.” Everyone knew who Mr. Green was, and there was a tacit understanding that nobody would get pushed too hard if Mr. Green had yet to arrive. Who is it today, Mr. Plastic? Or maybe Mr. Paypal?
At the same time, court appearances weren’t about trying to find a kink in the armor, a screw-up to exploit, a paper not filed or a filed improvidently. The only association between our dear client and his 37 second in court was the need to get an adjournment so that the deadbeat could pay his bills.
Some lawyers resorted to harassing their clients, threatening them with jail or worse if they failed to pay up. Like a loan shark owed too much vig, the threats increased. Picture the lawyer berating his client in the hallway for the failure to produce the few hundred dollars that he promised the day before on the telephone to induce the lawyer to appear one more time. Of course, the client didn’t know that the lawyer had to appear regardless of whether he had a dime to tender.
The affront to ethics, to our responsibility to zealously represent our clients, is manifest. Our every effort is directed toward getting paid rather than defending the client. In fact, opportunities to defend are ignored, even avoided, because the fee remains unpaid. Even the newest, hungriest lawyer knows that he will never see a dime after the case is completed. That’s just not how life works on the street. Nobody pays out of honor or respect; they pay because they have no other choice.
There is no ethical connection between clients meeting their payment obligations to their criminal defense lawyer and our duty to defend. It’s brutally harsh, given that landlords, lawbook companies and Starbucks expect payment when due. But our lot isn’t their concern. Once you accept a case, file your notice of appearance and assume the responsibility to serve as a lawyer for an accused, financial issues no longer drive your duty. You are the lawyer.
Some judges will let an unpaid lawyer off a case, at least under certain circumstances. Some will laugh at you, shrug their shoulders and remind you what Brian did: get it up front. This is the last resort, assuring that the tiny bit of leverage is gone and you will never be paid for the work you’ve done.
Every lawyer, new or lion of the bar, wonders whether the phone will ring again today. Every lawyer wonders whether the caller will have a great case and the wherewithal to pay for it, or be a $100 shoplifter who wants a free consultation.
There have always been lawyers who will never let a client out the door if they have change jingling in their pocket. They need that change, and they fear that the phone will sit silently in its cradle. All the bravado in the hallways, or on twitter, won’t change the reality of an empty bank account. And so they take the case on a promise to pay, the client so sincere about how he’ll have the money next month. “You can trust me, I would never burn you. So how much do I have to pay now?”
It’s not just the fee that you’re fighting over for the duration of your representation, but your integrity. Don’t blame the client for compromising your ethics, for making you into the lawyer you despise. You made the choice when your hunger and fear overcame your sound judgment and experience. You knew he wouldn’t pay. You knew that your efforts would be consumed with getting the balance of the fee rather than defending your client.
This time suck it up and learn a lesson. Next time, don’t make the same mistake. If a person cannot pay your fee, then wish him well and let him walk. Don’t blame him later when the fault was yours.
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For $5,000, what did the attorney do? Put a stamp on an envelope? I’m not a businessman, but I really have no idea what a client can get for $5,000. Or what the attorney can give and maintain profitability.
A fee in the area of $5,000 is fairly typical for street crime defenses. The economics of volume are at play, as no one can try a case at that price. Put together 20 low level assaults and you’ve got $100,000 in revenue. Sadly, many opt for quantity over quality to stay alive, and by doing so, depress the value of their work and the expectation of defendants as to the cost of a defense.
On the other hand, to many people, this is an enormous amount of money and they can’t afford to pay anything that approaches a fee that adequately compensates for the time required to properly represent them. It’s an ugly and unfortunate situation.
Advice from old-timers to me holding my new law license:
“Get it while the tears are hot,” and
“If they can’t afford to get represented, they don’t get represented.”
I never forgot it. A tough world, that’s no news.
As far as profitability goes, a lot depends on overhead plus cost of living.
I live in the midwest where the cost of living is relatively low, and my overhead is minimal because my practice is nationwide. So, figuring my costs at $250 an hour is not unreasonable. That means 20 hours of work is estimated on a fee of $5000, and that one fee would be enough to cover my overhead plus feed and house my family for a couple of months.
I’m still new to private practice (though I’ve practiced law for almost 7 years), but my fee schedule works well for my standard of living. Even so, I have a lot of folks who gasp when I quote a fee of $2500 for something that will require 10 hours of my time.
I get a lot of potential clients wanting to pay over time, and some cases allow for that with minimal risk to me (where no entry of appearance is required or not required for several months). However, the client knows the due dates and the consequences if they fail to pay. Many want me to become familiar with their case and begin working on some of the preliminary matters rather than wait several months for full payment to begin.
That being said, I require payment in full before something happens that locks me into a case.
In Philadelphia, the problem of unpaid fees was described not as “waiting for Mr. Green” but as a “Rule 1” problem. I was so dumb the first time I heard the term used in court that I actually looked it up, only to find that Pennsylvania’s rules of criminal procedure begin with Rule 100.
Makes perfect sense, as get “paid up front” is the first rule of criminal defense lawyering.
I find that as a group, criminal defense lawyers are lousy businesspeople. That’s one reason too many take cases on the Wimpy principle. (I will gladly pay you Tuesday for a hamburger, er, trial today.)
The lesson, get it all up front, is for many of us a very hard one to apply in practice. Getting burned a few times – and I don’t know any criminal defense lawyers who haven’t – proves to be a wonderful teaching device.
I remember a client appearing at the start of jury selection, the trial fee unpaid. He wore a brand new orange pimp suit, a la Suger Bear in Starsky & Hutch, complete with matching hat. I asked him where he got the suit, and he informed me that when I told him to wear what he might wear to church, he decided to one-up me and look his “best”. I asked him where he got the money to buy the suit, and he told me that “you know, I had a few dollars saved,” and decided that it was put to better use buying some fine looking threads than paying his lawyer.
He then asked me if he could ask me a question. I told him questions were for paying clients. Ask his suit. He offered me the suit after the trial was done. I declined. He was acquitted. I never heard from him again. I assume he still has the suit.
That’s the very scary part of this. How did you prevent it from happening again?
By making the active decision to take a hard line to be paid in advance, or give a gift.
I heard that. Way in advance.
I read the article and it made me laugh and feel ashamed at the same time. I am a Paralegal and work with Federal and State Offenders on numerous issues. Sometimes I work with an Attorney but most of the work is done w/o an Attorney. I own my own business; I have a Clinical Psychologist, a Business Administrator and other Consultants that come on a case as needed. Bottom line is I am always complaining about family, mothers, fathers, girlfriends, etc. that do not make their monthly payments on time, if at all, and then I am angry with them, the client and everyone else. Thank you for the reminder that my job is to assist the client not constantly worry about being paid. I also have to decide if I am going to accept monthly payments or get the fee up front. Thank you again.
Or a mitzvah, that I hear too.
You practice without a license? I guess I’m confused.
I am a Paralegal and went to school to become one. Paralegals do quite a bit of legal work.
I have doing this for almost 25 to 26 years. I do Parole, Pardon, Commutation and Sentence Modification Reports, I have submitted mitigation reports and Program Recommendations to both Federal and State Judges.
I have testified at sentencing hearings to explain my recommendations. I have articles in 5 books relating to the death penalty. I have done extensive research on Capital Murder Cases, and spoken at Colleges and Community Meetings concerning the Death Penalty.
I can do wills and bankruptcy cases. I also have submitted Compassionate Release Requests my most recent one was submitted on behalf of one of the Scott Sisters. Are you familiar with that case?
I could go on but I see no reason to explain myself any further. I am confused as to why you are confused.