Using a Private Criminal Defense Lawyer: Part Three

Part three of using a private criminal defense lawyer: Learn about the costs and typical types of fee structures a criminal attorney may employ.

Continued from Part Two

What’s a private criminal defense lawyer likely to cost?

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:

  • The probable complexity of the case. Most attorneys charge more for felonies than for misdemeanors, because felonies carry greater penalties, often require more court appearances, and so on.
  • The attorney’s experience. Generally, less experienced attorneys set lower fees than their more experienced colleagues.
  • Geography. Just as gasoline and butter cost more in some parts of the country than others, so do attorneys.

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).

How do criminal defense lawyers decide how much to charge?

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.

Hourly billing

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.

Case billing

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.

What is a retainer fee?

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.

I’ve heard of contingency fees, where an attorney gets paid only if the attorney wins the case. Can I arrange for a contingency fee in a criminal 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).

How do I find out what services I’ll be getting for my fees?

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:

  • the cost of a private investigator
  • expert witness fees
  • the costs of copying documents and subpoenaing witnesses, and
  • the attorney’s fees to handle an appeal from a conviction.

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.

Can I change lawyers if I’m unhappy with the one I hired?

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.

What can I do if I think my lawyer overcharged me?

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.

Do I have to hire a lawyer selected by my relatives or friends to get me out of jail?

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.

How can I be sure that I have my attorney’s undivided loyalty?

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:

  • "Even though my mom (or uncle, etc.) is paying your fees, am I the one with whom you will discuss all important case strategies, including plea bargains?" No matter who is paying a lawyer’s fee (even if the government is paying the fee), a lawyer’s duty is to the client and not to whoever is writing the checks. For example, a lawyer cannot disclose a defendant’s confidential communications to the person paying the defendant’s fee. And it’s up to the defendant, not the fee-payer, to decide whether the defendant will plead guilty.
  • "I'm charged with embezzling money from the city department where I worked, and I think I’m being made a scapegoat for political reasons. Do you represent any local agencies or politicians that will prevent you from showing who’s really responsible for the money that disappeared?" Defense attorneys often try to show that others are responsible for the crimes with which their clients are charged, and defendants do not want to be represented by lawyers whose hands may be tied.
  • "If I decide that I want to go to trial, will you support that decision?" Sometimes attorneys take cases expecting them to settle and have no real desire to go to trial. As a result, a lawyer’s advice may reflect the lawyer’s agenda rather than the client's.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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