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The Truth About the Setting of Attorney Fees

As a practical matter, the fees lawyers charge tend to vary greatly. It is hoped that the following will help the potential client make at least some sense of attorney fees and how they are set.

NEVER HIRE AN ATTORNEY WITHOUT A WRITTEN FEE CONTRACT You might be surprised how many criminal defense lawyers do not provide written fee contracts. This is extremely dangerous and leads to potential problems. Often times an attorney who chooses not provide a fee agreement will tell the potential client that he will "start" the case at a very low price. Nevertheless, at every stage of the case, the attorney requires more money and threatens to withdraw from the case if he is not paid the additional sums. The result is that you can wind up paying much more than had you hired the attorney who seemed more expensive to begin with. A fee contract avoids these nasty surprises. Besides, why would any attorney not provide a written fee agreement that makes the obligations of both the attorney and the client clear?

AVOID HIRING AN ATTORNEY THAT WILL ALSO POST YOUR BOND While Texas does not prohibit an attorney from posting a client's bond, many states do because of the conflict of interest that exists. The role of a bondsman is to make sure you appear in court and a bondsman has every incentive to inform the court if you are not complying with the conditions of your release. On the other hand, your attorney is supposed to be your advocate and protect you from having your bond revoked in the event you do not fully comply with your release conditions. We have also seen cases where, when a client gets behind on his legal fees, the attorney posting a client's bond threatens, and sometimes does, have the client's bond revoked as additional pressure to pay the outstanding legal fees. It should be easy to see why hiring an attorney to post your bond is rife with conflicts and should be avoided. You should hire an independent bondsman and an independent attorney.

BEWARE OF LAWYERS WITH A VOLUME PRACTICE There are many lawyers out there that have a "volume" practice who offer to do cases at cut rate prices (often these cut rate prices are to "start" the case and the attorney does not provide a fee contract). Many times, the income of these lawyers is actually substantially higher than other more qualified lawyers. Here is why. Let's assume you think about hiring Attorney Smith. You found Attorney Smith in the yellow pages where he has a full page advertisement promoting low fees or Lawyer Smith has sent you, and thousand of other who had been arrested on a particular night a letter promoting his low fees. A yellow pages ad might cost Lawyer Smith $50,000 and he might spend thousands of dollars per month on mail outs. Because Attorney Smith gets so many calls from his ads and mail outs, he has to hire additional support staff to answer the phones and "screen clients" so that is more money toward overhead. Nevertheless, Attorney Smith is able to charge low fees because he has so many clients who respond to his ads and/or mail outs that he can make up for it and pay his overhead by running a volume practice. Often you will meet Attorney Smith for the first time in the courthouse when he shouts your name in the hallway. You will rarely, if ever, be able to get Attorney Smith on the phone to answer questions. If you resist pleading guilty and request a trial, many problems will arise. After all, how can Attorney Smith spend time preparing for trial and then sitting in a trial for several days? Simply put, he can't because the house of cards he has created with the volume practice will collapse if he cannot meet the dozens of other clients who have cases set on the same day. Nevertheless, don't feel sorry for Attorney Smith because he will often make much more money than the average attorney even after accounting for his high overhead. As a rough example, let's say Attorney Smith charges $2,000 per case but handles 500 cases per year. That amounts to a gross income of $1,000,000. Now, lets say another attorney who actually returns your phone calls and has time to prepare your case and represent you at trial if that is in your best interest charges $5,000 per case but handles 50 cases per year. That only amounts to a gross income of $250,000. In sum, if you have a simple case in which you know there are no legal issues to raise and you absolutely know that you do not want a trial and you are not going to want to ask your attorney many questions, it could make financial sense to hire Attorney Smith. On the other hand, if there is any chance that you want to fight your case or you think you will have questions for your lawyer, spend the extra money now or you will have to spend even more later trying to undue what Attorney Smith did, or failed to do, for you.

BEWARE OF LAWYERS SIZING YOU UP Unfortunately, we have heard of many lawyers who attempt to determine how much money potential clients have and then charges them "as much money as they can afford." We often see this with some California attorneys who advertise "national practices" on the internet. While it is admirable for an attorney to reduce her rate for a client with a low income, it is disgraceful for a lawyer to charge a wealthy client more than she would ordinarily charge because the client can "afford it." Beware of lawyers who seem to be asking questions that are designed to determine your income or assets that have no relation to the charges against you.

LEGAL FEES IN STATE COURT WILL DEPEND ON THE TYPE OF CASE This is probably obvious. In state court, fees will almost always depend on the seriousness and complexity of the case.

LEGAL FEES IN FEDERAL COURT WILL BE SIGNIFICANTLY HIGHER As discussed on our website Broden & Mickelsen FAQs, there is a huge difference between state court and federal court. Almost all criminal defense lawyers are qualified to practice in state court. Nevertheless, very few criminal defense lawyers practice regularly in federal court. It is extremely dangerous to hire an attorney to represent you in a federal criminal case that does not appear regularly in federal court. Nevertheless, this means that there are very few lawyers to choose from if you are charged with a criminal offense in federal court. For example, in Dallas, there are probably less than 30 lawyers who appear regularly in federal court. Consequently, because of the limited supply, legal fees for criminal cases in federal court are often significantly higher than state court.

LEGAL FEES WILL VARY BASED ON THE LAWYER'S QUALIFICATIONS Again, this should seem obvious, although it is sometimes surprising what lawyers with minimal qualifications will attempt to charge a client. Some qualifications to look for is whether a lawyer is Board Certified by the Texas Board of Legal Specialization in criminal defense attorney. Texas Board of Legal Specialization Another is whether that lawyer is AV rated (the highest rating) by Martindale-Hubbell, an independent entity that rates lawyers. Martindale-Hubbell Another is whether the lawyer has been voted a "super lawyer" by other criminal defense attorneys and how many years he or she has been voted a "super lawyer." Super Lawyers

FLAT FEE OR HOURLY FEE Generally criminal defense lawyers in Texas charge a "flat fee" for their representation (although they often charge a "split" fee as described below). An attorney should give you the option of paying an hourly fee, nevertheless, an hourly fee is generally more suitable for corporations that have very deep pockets. Individuals generally prefer the "flat fee" so they know in advance how much the legal representation will cost a the end of the day.

SPLIT FEE FOR PLEAS AND TRIALS Mostly all criminal defense lawyers in Texas will split the flat fee between plea and trial. For example. they might say that the fee for a plea is $5,000 but if the case has to be "set for trial there will be an additional fee of $5,000. At Broden & Mickelsen, experience has taught us to shy away from this type of fee arrangement. Although we will occasionally propose this arrangement where it seems very unlikely the case will proceed to trial, we believe such an arrangement interferes with effective representation because clients often times make decisions about how to defend their case based on financial concerns rather than legal concerns. Moreover, we have found that, in a large majority of cases, a plea offer will get appreciably better only after the case is "set" for trial. Therefore, even in cases that will not ultimately go to trial, it is often in the client's best interest to at least "set" the case for trial. We would rather charge a fee in the middle (e.g. $7,500) and this way our advice to the client is not colored by the prospect of earning additional monies based on the advice we give and the client can make the decision as to whether or not to go to trial freed from the prospect of having to pay additional monies if he decides a trial is in his best interests.

CONTINGENT BONUSES We have encountered attorneys who attempt to charge a "performance bonus" if they can convince authorities not to indict the client, or if they win at trial, or if they get a case dismissed prior to trial. The Texas Lawyer Disciplinary Rules clearly prohibit such "bonuses" because they are "contingent" on a certain outcome. Texas Disciplinary Rules on Fees You would do well to avoid any attorney who does not follow the ethical rules of his or her profession.

EXPENSES In many cases, it will be necessary to hire a private investigator to investigate the case. In some case, it will be necessary to hire experts to assist the attorney or to testify at trial. It varies among attorneys as to whether these expenses are included in the legal fees charged. Again, however, it is important to have a written fee agreement so that it is clear who is responsible for these additional expenses.

OTHER ISSUES Many criminal defense firms, including Broden & Mickelsen, accept credit cards. Many criminal defense firms will not require the entire fee to be paid up front. For example, Broden & Mickelsen will generally require payment of half the fee up front and will make payment arrangement for the other half.

About the Author

Clint Broden of Broden & Mickelsen Law Firm is board certified in the area of criminal law and his practice is limited to criminal defense work. He has received an "AV" rating from Martindale Hubbell, the highest rating available. He was voted by his peers as a "Super Lawyer" in criminal defense in 2004, 2005, 2006 and 2007. Although he handles all types of criminal cases, Clint Broden specializes in complex, criminal cases in federal court at both the trial and appellate level.

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