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

Saturday, March 06, 2010


As the economy continues to tumble (no, those "good numbers" on the news are not true, the economy still sucks and it's getting worse) the issue of legal fees becomes, well, more of an issue.

People say to me all the time - "the economy must be great for you - people are probably getting in trouble more." (domestic violence, DUI, theft).

Maybe, but here's the obvious - when people don't have money, they don't have money. When people have no access to credit, they have no access to credit. And when people are looking to save whatever money they don't have, they pay more attention to where they spend it.

Most people, even the ones who deny this, hire a criminal defense lawyer using the following formula:

1. How much money do I have to spend on a lawyer?
2. Who will charge me an amount less than that?
3. Hire that lawyer.

There is also a little tactic that is rearing it's ugly head more and more - trying to get money back.

A colleague told me recently of a case where the client paid half the retainer and then the case was not filed. This was a case that would have had a significant effect on the client's future, as most criminal cases. It was not filed due to some quick and hard work by the lawyer. When the lawyer called the client to advise of the results, the client asked for a portion of the half of the retainer he paid. He said he "needed the money." The lawyer responded by agreeing not to seek payment of the other half of the retainer.

I've heard this throughout the years, but I'm hearing it more and more these days. People have to get money from somewhere - even if it's from someone they agreed to pay.

The request usually comes with some specious threat to file a Bar complaint, so let's review:

Legal fees are determined by the following: The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; the nature and length of the professional relationship with the client; the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation.

Note: Time and labor required is one factor.

One, factor.

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.


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  1. I've had similar problems for about a year now in CA. Had to stop taking cases for "down payment" followed by monthly payments on balance.

    One mom -- a paralegal who thought she knew what she was doing -- tried talking directly to the DA, apparently thinking she could resolve the case. When I told her in no u certain terms that if she did that again, I would quit, she convinced her son to fire me.

    They then tried to get the fee back. I refused. Fortunately, when they asked their new attorney what to do, he advised them That he knew how I work my cases, that I probably already earbed what I had charged and more, and they probably could not win if they tried to get it back by suit or arbitration.

  2. If you always accept payment plans, you are asking for this crap. Your retainer should say in big, bold, capital letters "FLAT-NON-REFUNDABLE FEE" meaning you give me the money it's mine to keep.

    Results obtained seems to be a strong factor in the case you cited Brian.

    Would you rather we took depositions, hired an investigator, psychologist, spent $10k on costs, tried the case before a jury after prepping for a year and then won? or maybe lost and you went to prison?

    What part of FLAT, NON-REFUNDABLE did you not understand?

  3. Anonymous11:25 AM

    While I sympathize, most of us peons don't have thousands of dollars (or assets) available for criminal defense. I'd love to be able to throw you $50,000 as soon as I could, but as I don't have that kind of cash...

  4. Anonymous9:37 AM

    "That kind of cash" v. a criminal case that could wreck your life. People will break the bank for heart surgery, but they won't pay that kind of money to defend their very lives.

    I've always been struck by that dichotomy.

  5. Anonymous3:02 PM

    It's not my unwillingness--I DO NOT HAVE THE CASH! What part of "it doesn't exist" do you rich lawyers not understand? I am completely unable to "break the bank" for surgery (or criminal defense) because... wait for it... I DO NOT HAVE THE CASH! If it doesn't exist, then it doesn't exist, regardless of how much you insist that your clients are just being stubborn.

    It must be nice to live such a privilged life that such concepts are beneath your understanding.

  6. Anonymous12:38 AM

    This is the anonymous municipal cop from a few post back on fees. I would just like to point out that the previous 3 anonymous posts on this thread were NOT written by me. Lawyers do have the right to be well compensated for their services, just as do physicians. They provide a crisis critical service that people both need and cannot do for themselves. The issue (as I have already stated in a previous discussion) is that the average client often simply can't afford those fees and no other mechanism currently exists to compensate the attorney for their time and efforts.

    Gray Tesh,

    I just have one question for you. If you were charged with a crime that required a quality legal defense, could you pay six figures in cash up front? Could you afford to hire yourself?

  7. Anonymous5:05 PM

    Great article. Since most criminal defense lawyers are sole practitioners we are often isolated from one another. While I never like to read of that a defense lawyer's efforts go unappreciated or even unpaid, in a sense it's a relief to know I am not alone. We work hard, put up an enormous amount of nonsense, and we have our expenses to meet -- we deserve to be compensated accordingly.