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Hiring a Federal Criminal Defense Lawyer–Part Ii: Money Questions

Kish Law LLC

I posted recently on questions people should ask themselves and potential attorneys when anyone feels they need to hire a federal criminal defense lawyer.  The earlier post focused on questions dealing with the attorney’s qualifications, and whether he or she would be the right “fit” for the client and that case.  Today, we talk about what is often the bigger issue for many people; money.

OK, here’s the first point, and it is painful.  Lawyers are expensive.  Lawyers who specialize in federal criminal defense are very expensive.  And, lawyers who are among the best at handling federal criminal cases are sometimes extraordinarily expensive.   There are several reasons why really good criminal defense lawyers handling federal cases are so expensive.  I’ll talk about that in a minute.  However, just because the top federal criminal defenders usually charge a lot of money, that does not mean a good defense is too expensive for most people.

For starters, there is the nationwide system funded by the Criminal Justice Act, or “CJA”.  Under the CJA, there is a “public defender” in every federal judicial district.  Furthermore, qualified private lawyers handle overflow work and cases where the public defender might have a conflict of interest.  The vast majority of federal public defenders and CJA private counsel are capable lawyers, and a few are very good.  Therefore,  if someone is “indigent”, it is possible to have the court appoint a “free” lawyer, and these attorneys are often better than some attorney who says he or she will take a federal case for far less than the fees most attorneys are charging.  People should be wary and suspicious of an attorney who says she or he can handle a federal criminal case for less than $10,000 (most cases are far, far more expensive than this amount).  These matters are usually so complex that the lawyer who charges such a fee will have a very big incentive to not work hard and to try and convince the client to plead guilty without every assessing the merits of the case.

Also, most good federal criminal defense lawyers look at each case separately.  Just because we charge large fees, that does not mean we automatically reject a client who has fewer resources.  If someone comes to me with a very good and interesting case, but less money than what I generally charge, I will try to be creative to see if we can come to an agreement concerning fees.  I need to make sure that my firm gets paid enough to make it worthwhile, but at the same time I will try to work with the client and his or her family to see if we have other options to let them hire my firm.  I am running a business, and always need to assure that the staff is paid, that our rent and other expenses are handled, and when all that is taken care of, that I am fairly compensated.  But that does not mean we reject every person who might not be as well-off as the next client.

Many people ask, do we charge by the case, or by the time we put into the case.  The answer is, “it depends.”  I’ve been doing this for over 35 years, so by now I have a fairly good understanding of how much work a certain type of case might require.  If the client has not yet been charged, and is merely being investigated, I will often ask for a retainer and bill against that for my time and out-of-pocket expenses.  Some portion of the retainer might be non-refundable, for several reasons.  To begin with, when I take a case in the early phases of an investigation, that means I am usually conflicted from representing anyone else who is caught up in the matter.  I need to take that into account when someone hires me before they are indicted, because it means I likely have to turn away other business down the road.  Furthermore,  I only take on a limited number of clients, so when I accept one person’s case that work prevents me from working on other new cases.  That is another reason why a part of the initial retainer is sometimes non-refundable.

Other times, we charge a “flat fee.”  This type of fee is usually involved when a client has been indicted and is facing a full-blown criminal case.  There are are at least five reasons why the flat fee is often better for the client and for the lawyer.

First,  I need to take into account the fact that I have to notify the court, through a document called a “Notice of Appearance” (or “NOA”) that I am the attorney for that Defendant.  Every court is different, but some courts take the position that filing the NOA means that the lawyer is in the case from the beginning to the end, even if the lawyer does not get paid the fee he or she anticipated getting.  As a result, I need to figure out in advance how much time (and money) a case will require, if the matter drags on for many months and years prior to trial and possibly a sentencing hearing.

Second, I rely on my experience when setting the fee.  I have a good idea as to how much work will be involved.  I need to account for the fact that after I ask the client to pay a large flat fee, I often will be working for months, and sometimes years, on that same case.

Third, cases have become extremely complex, both legally and factually.  Most cases now involve huge quantities of  information, and new types of software and data arise every month that we need to learn and use.  My staff and I need to hire outside help many times, from computer experts to forensic accountants.  We often use professional investigators.  The complexity and these expenses are taken into account when we figure out the flat fee for a federal criminal case.

Fourth, sometime the flat fee is easier for both me and my client emotionally.  Both sides of the equation want to get the fee out of the way. I much prefer working on my client’s case as opposed to making sure that our bill is paid each month.  Similarly, many clients feel better knowing exactly what he or she will have to pay, and can then take care of other portions of their financial lives.  The certainty is often a very beneficial aspect for all of us as we go through the stresses of defending a federal criminal case.

Finally, the flat fee takes into account my experience and level of accomplishment.  I’ve been doing this for over 35 years.  I’ve won more than my share of cases.  I am well-known in my field.  I am asked to teach other attorneys.  The bottom line is that I am good at what I do, and I charge for that.

Good lawyers cost a lot.  People should be sure that they are very clear about the type of arrangement and the amount of fees to be charged before they hire an attorney to work on defending a federal criminal case.

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