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

Monday, February 08, 2010

The More Things Change, The More Potential Clients Stay The Same

When I first started in private practice, I'd go anywhere to represent someone. I'd drive hours to a courthouse, or meet a client at a convenient place. I went to some interesting places.... Now, a few years later, most meetings are in my office, most cases, close to home.

But then there was last Thursday. A frantic mom called from her home a few hundred miles away - her son, a college student here, was arrested on some serious drug charges. Coming to my office was going to take some serious work, as he had no car and was waiting on a friend to take him back to campus after being recently sprung from the county jail.

So I looked at my schedule and realized that I was soon to head out of town for a conference, and drive right by the college.

"I'll go see him there."

Why not. Nothing wrong with going back to your roots and doing things you haven't done in a long time. It keeps you grounded.

So I went to the college and spend some time with my potential client. Interesting case, nice kid. He tells me to tell mom to hire me.

Now about an hour late for my drive out of town, I call mom and explain the situation as I know it to be and quote her a fee. She doesn't seem fazed by the fee and says she'll get back to me after talking to dad.

This was Thursday.

Today, Monday, I learn who the judge is, and send a message to mom letting her know about the judge and asking whether I should proceed on the case.

"I was going to follow up to let you know that your fee schedule was not affordable so we retained another attorney. My apologies for not calling. Thank you."

First, she was never going to call. We all know that. No one calls back unless they are hiring you or are of that rare breed that want to pay you for your time (that real, real rare breed) or just have that sense that saying "no thanks," never killed anyone.

Second, she violated rule 6 of my ebook: "Be honest with the lawyer. Tell him you want to hire him (if you do) and the details of your financial situation. You just told this lawyer you were plastered, picked up a hooker, stole something, or shot someone. This is not a time to be coy, or shy. Admit you are poor, broke, or need time to pay the fee. Tell the lawyer what you can come up with right now, today."

I also say in my ebook to "not negotiate," but that's mutually exclusive of telling the lawyer "hey, this is what I can afford" and letting the lawyer decide they really want the case, for a different price.

So after I made my house call (my first and last house call this year thank you lady for ruining it for everyone) and calmed her fears, she called another lawyer or 4. A lawyer who didn't go see her son, but gave her the "number" she wanted, got the case. She wasn't looking for a lawyer, she was looking for a fee.

I just hope she got both.

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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  1. The astute clients know you have to pay more than you want to pay to get a great criminal defense lawyer to defend you.

    The idiots that just look for the lowest price get what they pay for.

  2. Anonymous11:25 PM

    Guys, in fairness, you must appreciate that to pay a lawyer is well beyond what people can afford. Do they need your services if facing criminal charges? Absolutely. Can you then bankrupt them for the best legal defense you can provide? Absolutely. They are after all between the rock and a hard place. Look at the choice: go to jail or lose your house and all your asetts in legal fees. In fairness to potential clients, you act as if the client is at somehow at fault if they balk at insolvency for your services. You walk away with all their money whether you win or lose. They lose either way in terms of choosing jail (if you lose the case in court) or bankruptcy (if you win the case and take all their worldly assets in payment).

    Look at it from their eyes.

  3. Anonymous at 11:25, I don't know if you had an experience where a lawyer "took all your money," but I think you're confusing two different issues. First, I can tell you that my quoted fee in this case was no where near "all" the money the client had. Trust me. This client's mother was not looking for a good lawyer for her son, she was looking for a deal. She probably got her low fee, and hopefully, with a good lawyer.

    Lawyers aren't all the same. That was the point of the post. You seem as if to say she was in the right for agreeing to have me go see her son for her and his convenience, and then never following up with at least a "thank you" because she couldn't afford the fee.

    My mistake was not quoting the range of the fee before I went to see him. Although based on her behavior, she probably wouldn't have told me she couldn't afford it. She was more caught up in the moment and the fact that a lawyer was going to make a "house call." Respect was not in her thinking, nor is it now.

  4. Anonymous2:54 PM

    Brian, why does it always appear that you always blame the client, or a backstabbing attorney for your lack of case work. While I understand you have a family to support, perhaps being a criminal defense attorney, it's just not your calling. While I have personally seen you advocate for your clients, and you are a good attorney, you get so caught up on your fees or lack thereof.

  5. Anonymous at 2:54, thanks for your comment. Not really sure what you mean by a "lack of case work." I don't think I've ever complained about that, nor do I have reason to do so. As far as it not being my calling, I've been doing this for 15 years, and can't imagine not defending people. I love what I do, and I love commenting on the ups and downs of the practice. Most people seem to enjoy hearing that issues I have in my practice are the same as theirs.

    Again, thanks for your comment.

  6. Anonymous11:48 PM


    This is anonymous at 1125 here again. I agree that she should have shown you far more courtesy. I just see a tendency for lawyers to zealously argue the innocence of very guilty clients, showing willingness to move heaven and earth to keep them from criminal sanctions, while remaining blind to the financial ruin that any defense counsel worth his salt charges, no matter of the case outcome. In my local jurisdiction an OVI (drunk driving) case costs defendants (who typically can ill afford it) in the region of $6000 all told. So even if they win a 100% "not guilty" acquital they still face a financial disaster.

    I just feel that three things should happen:

    1. Public defenders should be more than overworked warm bodies with law degrees.

    2. Private criminal/traffic defense counsel should be more sensitive of what legal fees do to people who often ill afford them, but at the same have to pay to avoid criminal sanctions.

    3. Some mechanism should be improved upon where you (as a quality attorney) can be fairly compensated for your services while you clients aren't bankrupted in the process.

    Any suggestions?

  7. Communism? Maybe socialism?

  8. (1) No good deed goes unpunished, and (2) as the lawyer who trained me for 12 years said - NEVER do ANYTHING for free. If they want a jail visit, they pay for it (and you can apply it to the fee. If they are too cheap to catch a cab or find a ride to the office, then they are not looking to pay for quality representation such as what you offer. They are looking for the "lawyer in a can" & cheap. (Then, they will pay out the butt for the writ lawyer to fix what the cheap "trial" lawyer does to their case.)

    You are far too good to do anything (other than chosen pro bono) for free.

  9. I follow your tweets and have visited your blog many times, and I can’t resist chiming in on this one.

    I am a paralegal in Houston TX, for a small firm (3 attorneys), and I am also the firm’s financial manager. I love being a paralegal. I hate the financial manager part of it, when the retainer is getting low; I’m the one that makes the phone call.

    I am not sure how Florida’s public defender’s office works, however in TX we do not have public defenders. We have court appointed attorneys who are paid by the courts that work very hard to get their clients to take a plea at the first appearance and move on to the next case. If you bond out after being arrested (including being released on personal bond) in TX, you are no longer entitled to a court appointed attorney. The mindset is, if you can afford bond, you can afford an attorney, and that is a bad mindset.

    The policy puts many people who cannot afford attorneys who are unaware of it before bonding out (no one tells them) in the position of needing to hire anyone who will take their case and often have no choice but to make financial promised they can’t meet.

    Fees will always be a double edged sword. I am fortunate to work for skilled attorneys that try to genuinely help people facing legal challenges as you do. And like you, we are not ashamed that we expect to be paid for those services.

    I don’t know what your rate is and I don’t want to know. What I do know is whatever it is; it is not going into your pocket. Legal fees are expensive because the business of doing legal business is expensive.

    We “could” represent someone on a first time felony offense for $1,000.00. However if we did, forget about any mitigating circumstances making a difference. I am not going to have the money to get onto Westlaw or LexisNexis to do the research, nor will there be a budget to send me to the law library. I can identify expert witnesses but there will not be money in the budget to have one testify. Forget about that fancy PowerPoint presentation for the jury, all of the money in the budget goes into the attorney making court appearances not the paralegal creating fancy slideshows or finding new case law.

    Let’s not forget, if you want to be able to reach your attorney, we have to pay the phone bill and our internet provider. And yes, that pesky landlord of ours expects our rent to be paid each and every month and on time. The DA wants you to send a fax? That phone line needs to be paid as well. Paper? What do you mean a case of copy paper is not free? And that brings in the copy machine lease. THEN, my poor boss has to deal with me and a few others on the 15th and 30th of every single month. If he doesn’t get paid I don’t get paid, and I don’t think MY landlord or Ford Credit would be too happy about that. I also think I’ve made my point.

    In our office we deal with the fee dilemma with a written policy. We have two fees, our regular rate and pro bono. There is no in-between. I have a conversation with the potential client before we agree to take the case and I am very candid about finances. If they can't afford us, I tell them so and try to offer them alternatives. My attorneys are never involved in collecting fees that is my job. When we take on a pro bono case it is because the client has a serious legal challenge that is jeopardizing their liberty, and they truly cannot afford legal services.

    I am of the belief our legal system has some real issues and fees are one of them. However I also believe we have the best system there is, flaws and all. Should I ever find myself being charged with a crime, I would hope to be standing in an American court room, and paying a qualified attorney no matter what it takes or sacrifices I might have to make to have that representation.

    Don't say never on the House Calls, Brian. You did a good thing even though it wasn't appreciated.

  10. Anonymous1:41 AM


    The essential outcome of your argument would be that only the rich (or those willing to bankrupt themselves) could get quality legal representation. Yes, I understand that you need to make a living as an attorney and your clients should show you proper respect. I don't begrudge you that. But the end result of your method ("pay me 300$ per hour up front or you get no help from my firm") is that the legal profession (which supposedly has some aspiration to a higher purpose) becomes really nothing more than a bunch of highly paid mercenaries. How is it different from paying a plumber 50$ per hour to fix your sink? The difference is that plumbers don't make grandiose claims about seeking social justice through their work. If law is to be a simple no mercenary trade, that is fine. But then why all the verbiage about helping the poor and falsely accused when it is really just pursuit of money via a briefcase instead of a wrench?

  11. Anonymous,

    Choosing to work pro bono for someone v. having them mislead you into taking on their case under the pretense of paying you is completely different. I know what I need to make in a month to pay my bills, and the bills of those who work on cases or for me. When I have made the needed amount, then whatever time is left over I can CHOOSE to allocate to help whomever I want - not whomever thinks they are the worthy ones. More often than not, the ones I deem worthy were so humble and did not ask - I gleened the need from the interview. Those who want to dicker cost / price have the ability to pay, but not the desire.

    Believe it or not, MANY people can afford to pay for their lawyer (or more for their lawyer & the related costs than they want to pay.) They can afford a luxury car, trips to the casino, dinners out, designer clothes - because they WANT to buy these things. Being charged with a crime, or having their family member charged with a crime, is not something on which most planned to spend their money. In addition, they do not see a concrete item on hand and thus they feel like they are not really "getting" anything for their money.

    Very often, when it comes down to facing reality - just like facing the need for medical care, the person, or the family, CAN afford a good attorney - they just choose not to spend it on the front end. As I said before, when the cheap, inexperienced lawyer messes up the case, they come back to the lawyer whose fee was a bit more & want that lawyer to "fix" it.

    I have found that if I do ANYTHING for free, either most of the time it is not appreciated (you hear comments like - "if I was paying for the service, they would have worked harder" - which is bunk, or I have clients abuse the situation - call over and over, etc. I find that it is better to charge what might be high for that person so that they recognize the importance of what they are receiving. (For example, I once charged an elderly man $200 on a misdemeanor case. I got it in $20 increments. He was just as happy as could be to pay that money, which meant a lot to him. But he was also very satisfied with the outcome of his case AND his respected that my time was money.)

    If someone does not want to pay for a lawyer's time to visit their loved one in jail (or at their home - which is over the top), then they do not respect that lawyer, or that the lawyer's time is her / his money. These type of situations just smell like a complaint / grievance in the making - an additional waste of time that lawyers face too many times. You know the saying about once bitten . . .

  12. Anonymous2:25 PM

    I am fortunate to have health insurance to pay for medical bills. Otherwise, I wouldn't get good health care. Only the very rich can pay full price out of pocket for health care.

    I have fortunately never needed an attorney for anything except wills and minor uncontroversial real estate contracts. In those cases I set the money aside, treated the lawyer with high respect and paid in full and on time.

    However, I am a municipal police officer in the business of charging people with crimes (when the situation warrants it) and as a result I have seen some exposure to the bizarre alchemy that is the criminal justice system. Every defendent I have talked to has either defended themselves (for low level misdemeanors) gotten an overworked/underpaid public defender who may do a bad job or has had to pay vast amounts of cash they don't have for a good lawyer. Lose the house and lose the car amounts of cash. A few examples: the poor waitress barely making rent paying at least $6,000 for an OVI defense (yes, she was driving very drunk) regardless of the case outcome. Or the very guilty college student charged with a felony who no longer has tuition because his family spent all of his tuition on legal fees.

    The nature of legal fees is different in that it isn't something you can budget for. It is a "pay me $5000 cash you don't have tomorrow or you go to jail. And even if you do pay it, you may still go to jail," kind of world.

    I can appreciate your frustrations. I am sure you have been burned badly by clients before. You deserve to get paid, in the same way as does a plumber, a physician or an accountant. Clients shouldn't seek to mislead you. If they need a good lawyer, but have little money, they should say so up front. But you seem to labor under the illusion that people just happen to have tens of thousands of dollars on hand, ready to spend on legal defense, and express surprise when they balk at the prospect of the financial ruin a good legal defense represents. Let me ask you this: can you write a check for $10,000 tomorrow for a lawyer? How about more if the case drags on over time? Could you afford your own services?

    I could stomach this more easily if private lawyers (not public defenders or prosecutors) just admitted they were mercenaries looking to make money and not performing noble public service. Just say, "how much justice can you afford?" up front and drop the pretense. It just bothers me that all the "public service", "defending the innocent" and "social justice" rhetoric I hear from defense lawyers just doesn't often mesh with mercenary reality. It isn't social justice, protecting constitutional rights anything like that. It is just making money off desperate (albeit often guilty) people.

  13. Officer, I think you're confusing a lot of issues. First, my job is not to seek "social justice." My job is to defend people charged with criminal offenses. In order to do that job, I have an office, a secretary, a receptionist, and all the things that go along with that. I also have a philosophy in my practice - I don't play the volume game. I takes enough cases that I can handle, and charge accordingly. There's nothing wrong with that.

    You seem to think that as private lawyers, we owe it to the public to charge them what they can afford. Here's my answer. There are many ways to buy a suit. You can go to a thrift shop, cheap department store, expensive department store, expensive boutique store, or you can have one made. All of them have different qualities and charge different prices. That's life.

    In criminal defense, there are DUI lawyers that charge $299 and there are those that charge $10,000 or more. People have choices, just like they have choices in anything. If they cant afford a lawyer, they can get a PD, if they have a little money, they can find a lawyer they can afford, if they have unlimited funds, they can have the luxury of hiring a lawyer and paying them enough so that they can concentrate only on their case.

    People don't take an oath to poverty when practicing criminal defense privately, even though there are those that wish we did.

  14. Anonymous9:01 PM

    Part 1.

    Thanks for hosting a good discussion.

    You wrote: "First, my job is not to seek "social justice." My job is to defend people charged with criminal offenses."

    Look at the picture on top of your excellant blog. An African-American, poor enough that he wears overalls to court, being defended by a white lawyer. I am guessing the defendant in that photo (with the perceived inference of a false Jim Crow charge) isn't paying huge fees. That picture implies social justice to me more than it does a photo of a drug dealer paying slick lawyers with narco dollars.

    Some civil legal services are indeed like buying a suit. Last year I happily paid a real estate lawyer to review a mortgage document. There was no exigency. That is the health care equivalent of a minor toothache you treat at your convenience.

    Criminal defense is NOT equivalent to buying a toaster, a suit or even routine medical care. It is conceptually akin to sudden catastrophic illness or injury. You can be fine on Monday (no legal problems), have a heart attack on Tuesday ("egads, a felony indictment! Maybe I shouldn't have shot that guy at the bar!") and on Wednesday owing the cardiologist $30,000. No, you don't have to go to the hospital for your heart attack. No one forced you to have heart surgery. Heck, maybe you even brought it on yourself by a high cholesterol diet and no exercise (or being a drug dealer). You certainly could just die or see a quack "energy healer". I think we both know the reality is that if you don't see the cardiologist at the emergency department, you risk sudden death (or being found guilty without mounting a good defense). So while it appears you have a choice, you really don't.

    The difference is that catastrophic health care is sometimes covered by health insurance. Sure, the hospital bill may be $30,000, but that doesn't mean you have to to pay that in full with cash up front. A good private defense lawyer IS asking for just that. Only the very wealthy or a major company can afford that and I think you know it.

    If the defendent doesn't pay a premium fee, it then becomes a matter of, "how much justice can you afford?" Given the same fact pattern you might successfully defend a client where a cheaper and lesser lawyer would lose.

  15. Anonymous9:02 PM

    Part 2 and end.

    One thing has always disturbed me about charging people with crimes. I don't mind seeing them face potential criminal sanctions as I don't charge anyone I don't have overwhelming evidence against. If the PC is marginal I don't charge them. What troubles me is the realization that if I charge someone with a crime, they are in effect being doubly penalized. That summons or warrant doesn't just carry potential jail time. It carries hideously expensive legal fees they must pay (to effectively contest the charge) in addition to the criminal penalties. Even if they lose the case, they still pay the fees. And if they go with a PD or cheap lawyer, they get the justice they pay for. That essentially means poor people don't get the same level of justice.

    I DO think you deserve a high income and should have clients who do not treat you as shabbily as they seem to do. I am just asking you to realize that from a client perspective, a real legal defense is the functional equivalent of paying full cash (that most people don't have) for expensive cancer treatments or alternately letting the illness take its course. So it bothers me when lawyers then blame the client, who is between a rock and hard place, even if the client is to blame for putting themselves there.

    I would ask you one simple question to illustrate: if you were charged with major crimes, could you afford to pay another attorney your own fees for a first rate defense?

    I am suggesting a few things here:

    1. Private criminal defense, and private law in general really is a mercenary business. To pretend otherwise is to put lipstick on the pig.
    2. Legal service in general, but criminal defense in particular given its sudden onset high stakes nature, should be funded via a different mechanism.
    a. PD's should be better funded and staffed. Someone I charge with OVI should not lose their house or car (however drunk they may drive that car! :-) ) as the price to have a fair shot in court.
    b. Private lawyers should be able to make the good living they do, but it should be funded by some scheme like health insurance. To do otherwise really does create unequal access to justice.

  16. Your second suggestion is the premise of the "Lawyers for All" Movement: http://universalpublicdefender.blogspot.com/

  17. Does the fact that a doctor gets paid for saving a life make his work any less noble? Not to me, and probably not to the guy who gets his life saved.

    I agree with Brian's suit analogy (even though I hate analogies). We have people come to our office who do qualify for indigent defense, except that they want the *best* defense. The people in this county may not be rich, but they value their freedom, and the difference in representation that you get for cheap/free and our fees is palpable.

    I have a personal philosophy that if the State wants to put you in jail, then it is your job as an American to metaphorically writhe and flail about as much as possible during the prosecutorial process. In some cases, this means attacking the arrest, the search, the indictment, the grand jury proceedings, and on it can go. Does everyone want to pay for a lawyer to do this for them? No. But for those who do, it's awesome that the service is available. If it weren't, that would be a serious injustice, undermining the concept of an adversarial system.

    Finally, I do agree that public defenders should be held to a high standard, but expanding their availability means that law-abiding citizens are paying for the defense of repeat "criminals." People don't want to pay higher taxes for street repair, or so their kids can learn to read (i.e., I think its Denver that's talking about eliminating 12th grade), so are taxpayers really going to go for defending more sex offenders? No, because they never think that they are going to be falsely accused, or that they are going to get pulled over for DUI.

    Also to be considered, I have seen some prosecutors like to use the prosecutorial process to punish criminal defendants. If you really want to lower the cost of defenses, then that would be a good place to start -- eliminating qualified immunity so that prosecutors can be held liable when they zealously pursue a conviction on someone who, early in the discovery process, doesn't look so guilty.

    Just some thoughts.