Mark Bennett has written a series of posts explaining why he exhorts his fellow Texas criminal defense lawyers to vote against a state bar proposal to do away with flat fees. The impetus of this proposal is somewhat obvious, the concern on the part of bar-types that lawyers are receiving fees for work they don’t do, which seems wrong. It’s not.
The nature of criminal defense has always been different than others practice areas. Our clients are different. Their situation is different. We, the lawyers who defend them, are different. Rules that work fine for other niches don’t work at all.
The basic notion is that in the normal course of affairs, we either get paid up front or don’t get paid at all. The latter might be okay with some, who aren’t deeply concerned with lawyers getting paid, but they ignore the consequences. If criminal defense lawyers don’t get paid, then no lawyer who like to eat will be able to sustain a practice as a criminal defense lawyer. Whether we all run off to do real estate, or wills, or mergers and acquisitions (because their fees make complete sense) doesn’t matter. We won’t do criminal defense, no matter how much we want to. Our kids still need shoes on their feet. That’s life.
Some will argue that our clients can pay in pieces like the clients in other litigation practices. Not only is this untrue, but not even comparable. Personal injury collects the fee from the proceeds of the case. Corporations are an entirely different matter for obvious reasons. In civil litigation, the lawyers can beg off anytime the bills aren’t paid, plus hold the file with their retaining lien as a bit of extortion to get the past due balances.
Criminal defense is different. Once we’re in, we’re often stuck. Even if we’re let out, we’ve just burned our client in the process, something few of us can, or want to, do. As the judges tell us when we don’t get paid, that’s our problem, not hers. “Proceed, counselor.”
There are some clients who can be billed for their fees, and have the wherewithal to pay and the desire to do so. They are few and far between, as the vast majority of criminal defendants are poor, barely able to muster enough for their own subsistence. Those in sufficiently better state that they can afford to retain private counsel are at the edge. They have whatever they saved, put together from friends and relatives, and stuffed into their pocket. But that’s it.
Clients, in a spurt of irrational exuberance, make promises of future funds with the best of intentions. They ask, “don’t you trust me?” They mean well. But they fail, almost invariably. If I had a dime for every dime that was promised me, I would be rich. Instead, I work for a living.
No decent criminal defense lawyer can live with himself if he’s not doing right by his client. We fight because it’s a fight that needs to be made. We compromise because it’s in the client’s best interest. We can do this because money isn’t in issue; we are not in a conflict with our client. This will change.
Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client. They owe it and they don’t have it. We are forced to choose whether to work for free or hurt a client. This is an untenable situation. This situation cannot happen without undermining our purpose for being lawyers. Worse still, they don’t necessarily mean to stiff us on the fee, yet you can’t get blood from a rock. The lawyer gets screwed and has to eat the loss.
With that as a future, who would want to practice criminal defense? Who could afford to do so? Without flat fees, there could be no viable private criminal defense bar, unless the lawyer happened to be heir to so vast a fortune that he never needed to make another dollar. How many guys like that are around?
While the theoretical underpinnings of flat fees, such as the right to contract freely which would be available to everyone other than criminal defense lawyers, are worth arguing, there remains a fundamental point that can’t be ignored. Without flat fees, there can be no private criminal defense bar. Except for that one rich guy who does it for kicks.
That means that every criminal defendant except the wealthy (who can be billed because they’re, well, wealthy) will turn to “free” indigent defense. which means that we all pay for people who would otherwise pay for themselves, that our indigent defense services, already overwhelmed, would be even more overwhelmed, and that the future existence of a criminal defense bar would depend on the largesse of the government. The day they cut off the fee spigot, there will be no more criminal defense lawyers.
Except for that one rich guy who doesn’t need the money. He’ll be the last Texas criminal defense lawyer. That’s it.
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Scott,
While I certainly understand why most every criminal defense attorney (including this one) prefers flat fees (as do our clients), your critique seems to ignore the reality that lawyers could charge the identical rates and put it in a trust account until the expected work is performed. Instead of requiring “payment up front” as most solid CDLs do, they would require “anticipated payment up front.” Once the anticipated work is performed, the money becomes the attorney’s and is transferred from the IOLTA account to the operating account.
While this is an administrative pain in the ass, and has tons of other drawbacks too numerous to mention here, there is no reason to think it would lead to the destruction of private criminal defense practice.
Flat-fee lawyers who claim that their clients couldn’t possibly afford their hourly rates are simply inflating their hourly rates. For example, a CDL who works 1,800 hours a year and grosses $500,000 (in flat fees) is really a $275/hr lawyer, even if she would prefer to call herself a $450 lawyer.
I realize cases may go longer than anticipated, but this is a reality that exists independently of whether flat or hourly rates are charged. In a flat-fee system, the attorney eats it. In an hourly system, the attorney has the opportunity to ask for more. If he can’t afford it, the attorney will probably eat it, assuming the judge doesn’t allow him to withdraw.
That;s a different issue than the one I’ve discussed in this post, but happy to discuss anyway. As Bennett wrote, this is an art, not a science. If the flat fee concept is applied, we take our gains and losses with equal magnanimity, sometimes charging more than the time alone would justify, and other times less. There’s no going back for more if you charge less, and no giving back if you charge more. It equals out.
If we escrow and pay upon earning, where do we go when the amount in escrow is inadequate? Also, Tannebaum’s post about the relative worth of the PI lawyer, whose fee has nothing to do with hours is very persuasive. And why are hours alone determinative? What about the intangibles, experience and insight? Is it not better to get a case dismissed on the first appearance than the 31st? So this is hardly as obvious, or even reasonable, as it might first appear.
The love of billing hourly, as if that better and more accurately reflects how lawyers should bill, may not be nearly as good a system as many take for granted. Are one sixth segments really more honest when one thinks about a case or reads a one line email? Or sees an interesting decisions? Or copies a paper? And how do clients react when they see 12 hours of research that fails to yield a single decent decision? Yet that’s what you get.
I’ve billed hourly and flat. I never realized how many hours I put into a case until I billed hourly. Flat is a great deal.
The problem with the eliminating flat fees, with a pay up front in escrow system, is that it remains a loser proposition in every case unless the client can put more into escrow whenever the time exceeds the estimate. But that rarely happens, so it’s limited to get paid less or don’t get paid more. That’s a problem.
No, a lawyer who grosses $500,000 in flat fees is a $500,000-a-year lawyer. Hours have got nothing to do with it. Billing hourly includes certain bullshit, for which the lawyer should be richly compensated.
You would charge the identical rates if you had to put the money into trust (lost present value) and might have to give some unknown amount back if some nonpracticing lawyer decided that you hadn’t earned it all (because you resolved the case without spending a as many hours on it as “anticipated”), but could never get more if the case turned into a tarbaby and required many more hours than anticipated?
Sucker.
Scott I thought this was a nicely worded and toned article on flat fees. It’s funny when I was a baby criminal lawyer, I wasn’t sure how I felt about flat fees. After countless examples of clients running out of funds at their most crucial points, I still choose to be the attorney who (mostly) sucks it up and finishes up the case because I think criminal law is different like that. It shouldn’t be “out of money, out of justice” in criminal law. Thanks for spreading the word.
I know that my brother, who just got arrested for burglary, would never be able to pay his legal fees by himself. I would gladly pay a flat fee to a lawyer on his behalf if that fee didn’t make me bankrupt.