A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Monday, December 06, 2010

Our Addiction To The Flexible (Non) Payment Plan

"Get it up front." That's the advice from any experienced criminal defense lawyer.

But cash flow is slow, you need the case, and you're OK getting $1,500 down on a $5,000 fee, because you really need that $1,500 right now.

A month later that first of seven $500 payments doesn't come. You hope the judge will give you enough continuances to get paid, and you're looking for a way to convince the client to pay his fee. In the end, you've received $2,500, you hate your client, and most of the conversation with him is about "when" he's going to pay.

This isn't his fault, it's yours. There's no such thing as a payment plan. It's a non-payment plan. When clients don't have to pay all the money, they don't. Remember, you're representing people accused of crimes. Some of them are accused of crimes having to do with theft or fraud. Some of them haven't done so well fulfilling obligations, so why do you expect they'll fulfill their obligation to you?

But the flexible payment plan is here to stay. Criminal defense lawyers who run factory type offices are fine with them. They'll take the credit card for the $500 down, do that a few times a day, and in the end, it's enough to pay the overhead and take a little for yourself. The lack of payment of the rest is the cost of doing business. Maybe in a year you'll look at your receivables (if you even keep track) and want to (unsuccessfully) try to collect.

I listen to how criminal defense lawyers run their practices. I hear about all these things. Sure, there are the clients that pay, but more often it's about chasing the money.

There's payment plans, and payment plans. Taking half down, or even a third and accepting a few payments may work. If you have a real case and not some show-up-once-and-get-a-plea thing, it may be OK. But generally, payment plans are a recipe for getting the down payment and nothing more.

I know "your clients" can't pay all up front. You sure about that? Have you ever asked for it all up front? Is it so foreign to you that you would never even think of it?

If you have the type of practice where you spend your days "feeling bad" for your clients, I just hope you have the type of practice where not getting paid is not an issue. Maybe you don't have rent in your home office, maybe you have no assistants, and your only overhead is your cell phone.

Those of us that don't get paid the fees we quote, deserve it. We need to stop complaining about it. People will treat you how they are permitted to treat you. If you allow clients to pay over time, you are telling them you don't really need the money.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter


  1. This is probably the best advice you have given in the past year. If you are a good lawyer, and you have a good marketing plan, and you execute that plan well (meaning you actually do something), you will NEVER, EVER have a problem getting your fee upfront.

    This strategy starts with doing good work and keeping your pipeline full of prospective clients.

  2. A payment plan is either a loan, and thus a credit decision involving (lots of) risk, or, if there is no realistic expectation of repayment, a gift.

  3. If only David Lorenzo hadn't felt compelled to sneak in a plug for lawyer marketing, turning this otherwise good post into something that feels sleazy, scummy and disgusting.

    Legal marketing has nothing to do with the point, and no place in this discussion whatsoever, and its insertion dirties an otherwise excellent post. What a shame.

  4. Mr. Greenfield,

    Two months ago when I spoke to the Florida Association of Criminal Defense Lawyers, Roy Black who spoke immediately after me told the group that they needed to embrace marketing or risk becoming irrelevant.

    Do you also find Roy Black sleazy, scummy and disgusting?

    I wish you well on your trip to irrelevance.

  5. Anonymous4:32 PM

    You have to be kidding me. You supposedly care so much about your client's rights being violated by the state. It just pains your conscience so much that your client might face jail time or a government fine at the hands of a court. Damn those cops and prosecutors for having the temerity to charge your client! That fires your desire to be defense counsel and makes you feel good about your job. All well and good.

    Yet....in the same breath you can in clear conscience drive that SAME client (even a factually innocent one) to bankruptcy with up front fees ("pay me 5,000$+ cash up front or I don't defend you. I don't care if you are innocent and are barely making rent as it is").

    God forbid your client should face jail time, court fines or restitution to their victims, but is just dandy for YOU to bankrupt them.

    I have news for you. Only the very rich can afford attorneys for anything more than a one time transaction like a will or a home sale. Your fees victimize them just as much as any criminal charges they face in many instances. You do some jail time and go home. You lose your job, house, and car in legal fees and you have no home to return to.

  6. Dude, how much is your freedom worth? I have to make a living, too. Have you checked out how much a car mechanic costs or a computer tech to repair your computer? I bet you don't rant on them the same way, and you pay or you don't get your car or computer fixed. Honestly, because of the ways the rules governing lawyers is set up, I virtually have no way of collecting my money once your case is over-money you agreed to pay me by your signature and promise on a contract. But you can make me do my job whether you pay me or not. What did you do? Just lie to me? Is that fair. You got a bitch about the justice system, bitch you your legislator or congressperson, not me.

  7. Anonymous12:27 AM

    Let me give you a concrete example. You get that rare factually innocent client who is living paycheck to paycheck. It feels good to represent this guy. You want to do it. You would feel clean defending the actual innocent against the state. This client isn't someone who really committed the crime he was charged with and is just looking to beat the rap or get a good plea bargain. He wants to fight his day in court. But he can only pay you in installments (or go bankrupt, lose his care and become homeless to pay your up front 5000$ retainer and then 10,000$ more as the case progresses). And the case would involve many motions and court appearances, perhaps even a trial.

    So, you sign a contract for payment amount over time. Payroll deduction, something like that. If he doesn't pay, you DO have a binding legal contract. So you sue the guy in civil court. You are a sharp lawyer going up against a lay person in court. You will win 99 times out of 100. Does it really matter if you get paid now or later?

    Legal fees (as they exist now) have always struck me as basically unfair. They are a blunt instrument that hammers the guilty and innocent alike. One reason I am VERY conservative about charging people with crimes (even when more than probable cause exists, I often just ask them to make restitution and let it go at that if they do so) is the knowledge that regardless of their case outcome (conviction, plea bargain or acquittal), I know for a certainty that if they pay for what our blog host calls a "real" (privately funded) attorney, I am in effect charging them a 5000$ fine in legal fees. That pales in comparison to a minimal fine a court would impose or even a few months in jail for some people. The case outcome is irrelevant to the fact that I just "fined" them at least 5000$ in legal bills for drunk driving.

    Also, would you really work for a client who didn't pay you? Let us say your client pays you up front, but gets convicted. He is now in prison and has no income. But he still wants you handle his appeal. If you aren't paid, would you still do the legal work involved in an appeal for free?

    It is dynamics like this that jaundice my view of the legal profession.

    An honest approach would be to just say it is a mercenary world where you get as much justice as you can afford. And if you can't come up with thousands in cash up front, then your innocence is irrelevant. The vaunted "right to counsel" is a joke when it comes such a price. Name me another enumerated right that I must pay vast amounts of cash for. But that isn't what I hear coming from the defense bar. I hear rhetoric about how the "government victimizes my clients," with nary a word about how "my client lost his house to pay my fees."

    I would object less if legal fees were more reasonable, but when they are over 100$ per hour (at a low level) you effectively make "justice" only available to the rich. The constitution supposedly extends equal rights to both rich and poor.

  8. Anonymous12:50 AM


    1. Could you afford to hire yourself, or counsel charging the same fees, for an involved criminal case?

    2. There is a constitutional right to counsel. There is no constitutional right to a plumber, doctor, accountant or computer technician. Yet the right to EFFECTIVE counsel (not a warm body public defender) comes at a cost that can easily bankrupt a person living paycheck to paycheck. Can you name me another constitutional right that costs 5000$ up front (with 10000$ more in costs to follow) in cash to exercise?

  9. Oh, it's the anonymous cop again.

    You don't have a constitutional right to counsel of your choice. If you can only afford the lawyer who works out of the trunk of his car, you can hire him. You don't have the right to the lawyer with 2 associates and a full staff with 25 years experience unless you can afford it.

    You have the right to free speech, but if you want to exercise that right in a newspaper ad, you have to pay for it. You have the right to bear arms, but the government doesn't provide free guns

    As to your question of "why do you need to be paid now?" That comes from someone who has never met a payroll.

  10. Anonymous11:37 PM

    Hi Brian,

    Yup, it is me again. I would ask you the same question. Could you afford, as a client, to hire yourself for a felony defense?

    It is a simple yes or no question.

  11. Officer,

    Yes, I've saved some money and have credit, so yes, I can afford to hire myself. Your question is ridiculous. It's like asking if a person can "afford a new car." What kind - a toyota? or bentley?

    Should professionals not be expensive because some people cant afford them? According to you - yes - you think all criminal defense lawyers should be modified public defenders.


  12. Anonymous11:39 PM


    My sense is that there are two ends of the spectrum for criminal defense lawyers.

    1. "the mercenary" who just views their profession as that rare way to legally (OK, bad joke :) ) bill at 200$ per hour. They may indeed be good at their job, but they are just are in it for the money. This fits some private practice OVI (drunk driving in my state) guys I have dealt with (and like) who did an awesome job, in return for what had to be at least 7K in legal fees, defending clients who had very high BAC counts and in one instance crashed his car into a tree on a Friday night. These guys don't talk much BS about how the "evil government is unjustly persecuting their innocent client."

    2. "the martyr" is more typically a civil servant public defender, with more cases than he can properly defend. He makes a living, but isn't getting rich like the mercenary does. One such guy jokingly (or perhaps seriously) called the prosecutor the "persecutor" in a case I worked. They really believe that stuff about how even their guilty clients shouldn't be victimized by the government.

    I am really not sure where you fit in that spectrum. On the one hand, you blog about how horrible it is that the government charges people with crimes. On the other hand, you most recently also readily admit that unless a person can afford your not inconsiderable fees, they will not get any justice from a high quality attorney.

    Let me ask you this. If you had to choose between these two clients, which would you take:

    1. A factually innocent man who will go bankrupt to pay you even 6000$ for his defense


    2. A major drug trafficker (guilty as heck for all kinds of felonies) who can offer you duffel bags full of dope money up front

  13. Officer,

    You have a gross misunderstanding of the difference between legal aid, public defenders and private counsel.

    Where do I fit in? I love what I do. I feel bad for people having to go through the system we have now, but that doesn't mean I am required to have a sign at my door that says "16 years experience, good reputation, fees are whatever you can pay." I have rent, staff, vendors, and other expenses that come with running a firm.

    Sure there are lawyers in criminal law just doing it for the money. Why do you think most prosecutors leave? They either don't feel strongly anymore (or never did) about prosecuting people, or, more often, they want to make more money.

    And asking me to choose between two clients, one "innocent" with little money, and one "guilty" with a lot of money?

    At this stage of my career - I'd choose the client I wanted to represent.

  14. Anonymous10:53 PM


    I have a relative who is now a judge in Chicago, after years as a prosecutor. She is now presiding over a lengthy bitter divorce case with a whole herd of lawyers working on it. Her statement to me over a Thanksgiving visit was that "there was an ATM outside her courtroom." Not that there were lawyers zealously representing clients to seek justice. Purely mercenary pursuit of money.

    I also know a very good drunk driving attorney. He spent his career (before passing the bar) as a police officer who racked up a career worth of drunk driving arrests. MADD loved the guy. It is interesting being cross examined by an attorney in an OVI case who has actually himself arrested more drunk drivers than you have. He charges a lot and gets very good results for his clients, but I doubt if he has illusions about his clients being factually innocent most of the time.

    But my question remains. If private criminal defense work is really just about making money for attorneys, then why do you get so upset about "the government violating your clients' rights" and that sort of thing as your blog otherwise indicates. If the government didn't charge your clients (whether they were guilty or not), you would have to work in far less lucrative field.

    It seems that you subscribe to the notion that people get all the justice they can afford. So why get so worked up about "justice"? Why not just milk the cow and be glad people like me pretty much compel people to hire people like you when I charge them.

  15. Your problem officer, is that you have no ability, like many other blog readers, to understand that just because someone says something about a particular situation doesn't mean it applies to everything.

    Some clients are wrongfully accused, some overcharged by the policec and the state, others are charged with exactly what they did.cso stop with the stupidity of the "all or nothing" garbage.

    My fee doesn't change because someone is innocent or guilty, rich or poor. I run a practice, not a clinic.

  16. Anonymous5:34 PM

    Anonymous Officer,

    How would you feel if people said, "I hate paying so many taxes. Why don't we just cut police officer's salaries?" After all, doesn't everyone have a right to police protection? You have to keep doing your job. YOU TOOK AN OATH. And you meant it.

    It's the same with defense attorneys. They literally are not allowed to quit representing someone who doesn't pay them. They may file a motion to withdrawal, but if it will hurt the client, they'll have to stay on. Working. For. Free. Or else they might be held in contempt, or lose their license for not fulfilling their professional ethical obligations.

    Yes, lawyers have ethics. And they're enforced.

    I appreciate your position. Personally, I hate paying for all kinds of things. I dislike spending money. I'm not a "rich lawyer" - I have to cut back on spending to make my rent and pay my bills.

    You, and other well-meaning-but-absolutely-ignorant people have no right to bankrupt me.

  17. Anonymous cop,

    Your position is similar to most cops and Republicans I know-your opinion is the only correct one, so everyone else, shut up. And you never, ever have made a mistake in an arrest. Many excellent ex-cops and ex-prosecutors I know who have taken up criminal defense as their new profession have told me how much fresher the air is on this side. By that, they mean they can now see some of the injustices take place and regret having been a part of them. That doesn't mean they regret having been cops or prosecutors, or that they personally felt they screwed over anyone. Sheriff's deputies who have come off the streets to work the courtrooms, some of whom I have cross-examined and criticized, have come to me and said how much different they look at their jobs now, how much more they feel it is important to get it right and work with the prosecutors and defense attorneys. And they are all good cops. You, and every other cop out there, make mistakes, just like everyone else. My job is to make sure my client doesn't wrongfully pay for it. Whether my client is guilty, innocent, or it just can't be proven beyond a reasonable doubt doesn't matter to me. What does matter is that my client gets treated fairly and justly by the cops, the judge, the prosecutors, and everyone else involved, and, if he pleas or is found guilty, that he or she receivers no harsher a punishment than he or she deserves. You just would never believe how many people there are out there who really didn;t do the crime, even though they may have plead or been found guilty by a jury. One could be you, or me, someday. Those are the ones who deserve our protection, and to do that, we have to protect even the rotten ones from unjust treatment. And for that, I deserve an honest days wage, the value of which is negotiated between me and my client, and is always fair.

  18. Anonymous11:11 PM


    I am about as far from a Republican as you can imagine. I vote straight Democratic, pay lots of taxes (and don't mind doing so) and am liberal on fiscal and social issues. I even agree with you that innocent people have been charged with crimes and in many instances convicted or took a plea on crimes they didn't do. Illinois and Texas have even executed factually innocent men. That is one reason I am extremely conservative about charging people and prefer resolutions that don't involve charges if feasible. If I don't have the crime on video tape, a confession, I personally saw you smoke the drugs, the stolen goods were in your bag or evidence of that quality I don't charge you.

    My issue with legal fees has already been laid out above. To briefly summarize it, one reason I only charge people I am very clear about having done the crime is that I know the real punishment won't come from the courts. They may do one day in jail and get a 100$ fine. They CAN beat the charge I give them and should have the chance to do so. The REAL punishment is forcing them to hire a lawyer with the certainty that I am in all reality inflicting a non-negotiable, non-refundable, 5000$ fine on them.

    There is just something basically wrong with a system where that is the case.

    I don't see why you guys just seem blind to that unspoken in polite company, but quite real aspect of the legal system.

  19. Jonathan2:37 PM

    Anonymous cop: Wrong again.

    "The REAL punishment is forcing them to hire a lawyer...."

    Officer, what do you read to suspects at every arrest? Pull out that little card they give you to remind you: "IF YOU CANNOT AFFORD AN ATTORNEY ONE WILL BE PROVIDED FOR YOU."

    And, in case you missed it, Brian has written numerous posts about how PDs are just as good, if not better, than many private attorneys.

    Please quit posting nonsense.