Wednesday, December 17, 2008

N-o-n-r-e-f-u-n-d-a-b-l-e

Main Entry: non·re·fund·able
Function: adjective
: not subject to refunding or being refunded (a nonrefundable bond) (a nonrefundable fee)


There are certain things we all at least seemingly understand:

[1] "No" means "no,"

[2] "Unsubscribe" means stop sending me annoying e-mails,

[3] "Nonrefundable" means your money is not refundable, unless you agree in writing that it is nonrefundable and the person with whom you make the agreement is a criminal defense lawyer and you are not happy, don't think it "took as long" as anticipated, or decide mid-stream that you want to hire another lawyer who isn't "just trying to get you to plea guilty."

I have decided, today, that I will no longer simply include the word "nonrefundable" in my retainer agreements with a detailed explanation of the word "nonrefundable and how it affects the retainer agreement, i.e. you're not getting your money back if you choose to hire another lawyer, have a dispute with this lawyer, or otherwise wish to cancel the agreement.

What I am going to do from now on is provide the client with a separate document solely discussing the word "nonrefundable."

I am doing this because I am tired of explaining it to clients, having them nod in agreement, some acting like they are listening to me re-state the obvious, and then at some point, asking for money back.

Case in point.

I am hired to represent someone arrested in a federal case. The family comes in and has one goal in mind. Can you guess what it is? That's right, "get him out." I quote them a nonrefundable fee, put two lawyers on the case, visit the client several times, prepare for the bond hearing and voila - the judge is considering overriding the governments recommendation of no bond and asks for research, adjourning the hearing for a couple days.

The family, not pleased that the judge did not jump out of her chair at the notion that the government was seeking detention on this manslaughter case and order the defendant immediately released with the apologies of the court and the United States, fired me.

That was six months ago, and two lawyers ago.

Today I get a typewritten letter asking for a "detailed invoice," and a "check for the unused portion of the retainer."

The nonrefundable retainer.

As a young criminal defense lawyer I used to shudder when a client requested a "refund" of fees. Now, I just get annoyed, but write no checks, ever.

See, the reason we criminal defense lawyers are known for "getting the fee up front" is because we sometimes don't get the entire fee if things don't go well. The definition of "things not going well" vary, but usually entail anything less than what the client expected.

Because we cannot be in the "satisfaction" business, we have to protect ourselves, like other professionals and businesses. We have to protect ourselves from those clients who believe they can agree to something, and then break that agreement and think that the lawyer will cower or not pursue payment because we are afraid of our state bar association.

I'm not afraid.

I'm not afraid, and I counsel all criminal lawyers that ask - not to submit to the threats of bar complaints and lawsuits by writing checks to a dissatisfied client.

Try that with a doctor and see what happens. "Doc, you said I would feel better in a week and I don't, how 'bout refunding that co-payment?"

But thank you for your letter.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

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