Continued from Part Two
More than most people really want to pay. However, as is so often the case in legal matters, a definitive answer to this question is impossible. Attorneys set their own fees, which vary according to such factors as:
Because of factors such as these, standard legal fees do not exist. According to a survey of readers reported in Consumer Reports, the median legal fee charged by lawyers in criminal cases was $1,500. (Median means that the fees were over the amount in as many cases as they were under the amount.) Because many of these cases only involve a consultation or a single court appearance, most defendants can expect to pay much more for full representation. For example, a defendant charged with a misdemeanor that goes to trial should not be surprised by a legal fee in the neighborhood of $2,000–$3,000; an attorney may want an advance of around $2,500, and $1,000 per day of trial in a felony case. Moreover, most attorneys want all or a substantial portion of their fees paid up front (in advance).
Criminal defense lawyers usually charge either by the hour or by the case. Increasingly, the latter type of billing arrangement is more common in criminal cases.
Defendants who are billed by the hour pay for the actual time their lawyers devote to their cases—say, $150 per hour. They may also pay for expenses a lawyer incurs in the course of the representation, such as copying fees, subpoena fees, and so on.
From the defendant’s standpoint there are advantages and disadvantages to hourly billing. The most important advantage is that defendants who pay by the hour benefit if a case concludes quickly. However, if the case becomes unexpectedly complicated, it can get very costly. Moreover, hourly fees give attorneys a financial incentive to devote more time to a case than it may warrant or the defendant is prepared to pay. Also, most criminal defense attorneys set a minimum retainer fee that they keep even if a case is resolved with one phone call.
Fortunately, experienced defense attorneys usually can anticipate how many hours they are likely to spend on a case, and a defendant should not agree to an hourly charge without getting the attorney’s good-faith estimate of how much time the case is likely to take.
Lawyers who charge by the case represent defendants for a fixed fee. For example, a lawyer may set a fee of $1,500 for a defendant charged with drunk driving. The fee would not change according to the number of hours the lawyer devotes to the case.
As with hourly billing, the case billing approach has its advantages and disadvantages. The primary advantage is certainty. Defendants know going in what their cost will be, and the attorney bears the risk of unforeseen complications. However, a defendant may feel ripped off if the case settles very quickly. (In some quick settlement circumstances, attorneys will refund a portion of their fee. But many will not, and a client should not expect a refund if the case is resolved quickly.) Also, the fee may cover only the pretrial phase of the case; the attorney may require an additional substantial fee to actually try the case. As with other types of information, the defendant should clarify this point before hiring the attorney.
Hourly Fee With a Cap
A defendant may also agree to pay an hourly fee but only up to an agreed-upon fixed sum. After that amount, the lawyer finishes the representation at no extra cost to a defendant. This approach combines the advantages of both of the fee arrangements discussed above while minimizing the disadvantages.
Whether they bill by the hour or by the case, defense lawyers typically want defendants to pay a retainer fee up front, before the attorney begins working on the case. For example, a lawyer who bills at the rate of $100 an hour may want clients to pay up front for 20 hours of the lawyer’s time, or $2,000. The lawyer will send the client regular statements showing how much time the lawyer has spent on the case, what was done, and how much of the retainer has thus far been used. If the balance in a defendant’s account approaches zero, the lawyer will probably ask the defendant for an additional payment (unless the lawyer is working for a set fee).
The lawyer will refund to the defendant whatever portion of the retainer remains at the end of the case.
No. Lawyers who work on a contingency basis take their fees from money their clients recover as damages; if the clients collect nothing, the lawyers get nothing. Defendants in criminal cases don’t recover money damages if they win, so there’s no pot of money from which an attorney can collect fees. Furthermore, while contingency fees are common in some types of civil cases (particularly personal injury cases), contingency fees are considered unethical and are not permitted in criminal cases (Rule 1.5(d) of the ABA Model Rules of Professional Conduct).
Defendants should carefully examine the terms of the attorney-client agreement they are asked to sign. Until recently, this would have been difficult, because many attorney-client arrangements were oral and based on handshakes. Today, after reaching agreement with a defendant about fees, a lawyer will almost certainly ask the defendant to sign a written retainer agreement or fee agreement. The agreement is a written contract, fully enforceable in court, which specifies the attorney’s fee and the services the lawyer will perform for that fee.
Knowing the amount of an attorney’s fee is one thing; knowing what services it covers is quite another. Many defendants who are fully aware of what their attorneys will charge are surprised when their attorneys inform them that they will have to pay extra for services that the defendants thought were included in the fee. For example, the reality is that most cases are settled before trial. Because of this, a fee agreement may include an attorney’s services only up until the time of trial. A defendant who wants to go to trial may therefore get a jolt when the attorney says, “My additional fee to take the case to trial will be $$$.” Other extras that may come as a surprise to a defendant include:
There are no standard agreements. Just because one attorney performed a set of legal services for one all-inclusive fee does not mean that another attorney will do likewise. The key for defendants is to read retainer agreements carefully and ask their attorneys to explain possible extras.
Yes. Defendants who hire their own attorneys have the right to discharge them without court approval. A defendant does not need to show good cause or even justify the decision to the lawyer. (Most attorney-client agreements explicitly advise clients that they have the right to discharge their attorneys.) After discharging a lawyer, defendants can hire another or, if qualified, represent themselves. Of course, the decision to change lawyers can be costly. In addition to paying the new lawyer, the defendant will have to pay the original lawyer whatever portion of the fee the original lawyer has earned.
In many states, bar associations (that is, organized groups of lawyers) can protect defendants against fee gouging. Many lawyer-client fee agreements provide for arbitration in case of a dispute between attorney and client over fees. Often, a state’s bar association selects the arbitrator. Many arbitrators are very sensitive to fee gouging, and will often reduce the fee of an attorney whose charges are out of line with others in the same geographical area.
No. Defendants who are in jail commonly ask relatives or friends to contact a lawyer for help in securing a speedy release. But a defendant doesn’t have to hire that lawyer. If the attorney wants to be paid for arranging for bail, the attorney will have to look to the relative or friend who contacted the lawyer.
Attorneys have a duty of loyalty to their clients and should not take on a case if representing the defendant would cause a conflict with other cases handled by that lawyer, or the lawyer’s own personal or business interests. (See Rule 1.7, ABA Model Rules of Professional Conduct.)
Here are the types of questions that defendants can ask to make sure that they have a lawyer’s loyalty: