Thursday, February 03, 2011

The Cheapening Of Our Profession: Who's To Blame?

When I first got a Blackberry, my father asked why I would want to "be in touch" all the time, why I would want people to be able to get a hold of me all day and night?

I explained that it wasn't that I wanted to be accessible to everyone all the time, but that if one other criminal lawyer was, and the client was not going to make that second call, I was out of a possible case.

Cue the whole "run faster than the fastest Lion" analogy.

Things have changed a bit, not totally though. I am lucky to have some clients who will wait a few hours or a day to reach me, and I've learned that those that usually hire lawyers immediately, aren't looking for a good lawyer, they're just looking for a lawyer. Any lawyer. True emergencies aside, most clients really need a bondsman, not a lawyer, at the time they are arrested. Most.

Back in the 1920's, here in Miami, the Dade County Bar Association printed a little book listing the fees that clients should expect to pay for lawyers. There were fewer lawyers and no advertising. I assume back then it was well known that a Will cost X and a Divorce cost Y. I remember seeing a line for "Felonies," but don't remember what it said.

When I started practicing, as it is today, there was no expectation of what a client would pay for fees. This is mainly because we as criminal defense lawyers have turned the practice in to a commodity for sale, rather than a profession.

The main culprit: Advertising. I hate it. I do it, on a small scale - black and white listings of my name in two publications. But no "mailers," no "brochures," no purchasing of the list of last night's arrests. Yes, I have a website, and my profile on various other sites, but if it was up to me, there would be no lawyer advertising. Why do I do it? Cue again the "running faster than the fastest lion" analogy.

Advertising does one thing - it publicises to the masses the services of the lawyer. The purpose of advertising is to convince others that you are the one to hire. Say you're "aggressive," "available 24/7," or a "former prosecutor," and you look good. Talk about the free consultation and jail visit, and listen to the cell phone ring.

With advertising comes the hook - "flexible payment plans," "affordable fees," and the ticket lawyers who offer "no fee" if the client receives points on their license. Most people don't get points, so it's a low risk proposition.

I've always been a fan of ticket lawyers. I think they offer a good service for a low price. But they've killed the practice - turned it in to a race to the bottom for fees.

I've seen fees on criminal cases range from $299 for a DUI (yes, $299) to several million dollars for a white collar federal defense. Most criminal lawyers today are happy to get their hands on $5,000.00 for the garden variety case. The clients who are willing to pay mid 5 figure and six figure fees are dwindling, and as a result, many of the former "I only handle big federal cases" lawyers are walking through state court trying to find the cafeteria.

Criminal defense lawyers routinely complain amongst themselves about clients who don't want to pay legitimate fees for a real defense. (I know my anonymous cop commenter is out there waiting to jump on this - he has never arrested an innocent person and thinks any attorney's fee is too much). We talk about the guy who cries about his life being over and that he'll "do anything" to resolve the case, except pay a decent fee.

No need to worry, our brotherhood is very willing to cut fees to get the case. Rent is due, staff (if any) needs to be paid, and if your buddy Bill down the street quoted the client $2,500, well, this is the client's lucky day - because (even though you normally charge $3,500 for this type of case) today you'll take $2,000.00.

Nothing wrong with that. Nothing unethical. Perfectly fine. This is America, capitalism is how we build business, and if the guy down the street gets the case because he can do it cheaper - so be it.

But what gets me is that we complain about "cheap" clients," and clients who don't know what they're getting when they hire "cheap" lawyers, and then we spend our days on our list serves asking for referrals to lawyers who are "reasonably priced." There is no such thing as reasonably priced. The term means "cheap." But no one asks. We see someone is asking for a referral and (most of us) don't even bother to ask what "reasonably priced" means. (I think it means $500, but that's just a guess.) When I do ask, I usually learn the client still owes his current lawyer money, is still in jail, can't afford bond, but yeah, wants a lawyer for his case in another state.

And it's not just lawyers we want. We want experts - cheap experts. We have clients facing serious prison time and we are looking for the "best" expert in a narrow field who will work for basically nothing.

We, not the clients, cheapen the profession. They're not the only ones out there looking for cheap - we are too.

Price fixing is illegal. It's a violation of the Antitrust Laws. When the ticket lawyer business first started (at least here in Miami) I remember they charged $99. All of them. The day someone charged $89, it was all over. Now, you can find $29. Congratulations ticket lawyers. Good job.

We complain about the status of indigent defense, that state governments pay so little for criminal defense lawyers. Yet we take the cases. Why do state governments pay paltry fees for indigent defense? Because they know there is no fee too low that would cause a serious crisis in client representation. There's always a lawyer who will take a case for next to nothing. Isn't there?

The economy doesn't help either. Many in our profession are just hanging on, and are willing to take "anything" to stay in business. I understand you need to keep the lights on, but are you really going to properly handle a federal case for $2,500? Are you really going to properly handle a DUI case for $300?

The problem is that in most cases the client doesn't know the difference. Hold their hand, tell them to answer "yes" and all is well. Next case.

I don't know what the answer is here. We've turned our profession in to a nice day for the lowest bidder.

And like an auction, eventually everything is sold, until the next auction.

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/ rules Post to Twitter