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

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/Bookmarkokdork.com rules Post to Twitter


  1. Anonymous7:34 PM

    Anonymous copper here. :-)

    1. What of the possibility that the law of supply and demand is at work here? If there are a limited number of lawyers for a few cases, the price of legal services will remain high. But what about when law schools (if the blawgoshpere is accurate at least) is producing a record crop of massively indebted new lawyers to serve what is, ultimately, a small and oversaturated market for legal services. That automatically puts downward pressure on legal fees. Having those heavily indebted lawyers willing to work for anything at all, just to practice law adds momentum.

    2. You say" 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."

    It must be different in your county. In mine an OVI is an expensive proposition to defend.

    You also write: "The clients who are willing to pay mid 5 figure and six figure fees are dwindling,"

    I would change that to clients that are ABLE to pay that kind fee are dwindling. You can't get blood from a turnip.

    I make a decent salary and save money. I could not come up with the hard cash tomorrow to start (but only begin) a felony defense without deciding that my children don't go to college. And most of your potential clients (the ones I sometimes charge are pretty much barely keeping up with rent and car payments) are in far worse shape than me. You seem to be either unwilling or unable to understand that dynamic.

    3. The obvious solution is to give public defenders (or private CDL's contracted by the state for specific cases) funding parity with the prosecution. That way people get punished by the courts (if found guilty or they plead out) rather than by going bankrupt. That is not likely to happen with Republican politicians.

    So we end up with the current model where an ever growing number of lawyers is chasing an ever smaller number of clients who can actually afford legal fees without bankruptcy.

    Do you have a structural solution in mind for this problem?

  2. Anonymous2:42 PM

    I am in wholehearted agreement. Advertising, coupled with the SCOTUS case [Goldfarb v. Virginia State Bar] that ruled the old minimum fee schedule a restraint of trade, have just about killed this profession.

    There is one aspect of this that has not been mentioned--the ethical conundrum. If a lawyer takes on a whole bunch of case at low fees, she can't spend a lot of time on any one case. That can be a major problem

    Some cases, most felonies, DWI cases, and some others, require a great deal of time, not to mention skill, to defend. That was the whole rationale behind the old minimum fee schedule. We are required to give a zealous, competent defense to each client. But, how is a lawyer going to devote the time and attention to each client, as the ethical rules require, when the rent isn't paid because the fees are too low?

    About 20 years ago, Newsday, on Long Island, ran a lawyer's ad that stated: Felony trial, complete, $500. How can you do that? (What's your name? Smith. OK, Mr. Smith, what are you charged with? Robbery. OK Ready for trial your honor,) As ridiculous as that sounds, that ad ran for six months to a year, perhaps longer. It is a perfect illustration of what has happened since advertising was allowed and the minimum fee schedules declared illegal.

    I wish I had an easy answer. Alas, I do not.

  3. Anonymous12:08 AM

    How about using the economic law of supply and demand. Many lawyers chasing few clients = the lowering of fees you describe (even if I personally don't have a problem with it). But, imagine if there were more clients than there were lawyers? The fees go up.

    This would require drastically limiting the number of law school slots available. Basically scale back (or eliminate) existing law schools and don't allow new ones to open. The ABA might have the power (you would know better than me) to do this through its ability to accredit law school programs.

    Otherwise, some observers have said in other blawgs how new attorneys just have to stop bitching and practice law any way they can, for the love of the trade rather than as a cash cow, and suck up not having 160K waiting for them once they show up with a law degree. Perhaps that can also be a lesson for veteran attorneys as well. Are you doing this just to make boatloads of money (if so then the business world might be better), or to make an acceptable living zealously represent the constitutional rights of your clients and that sort of thing?

  4. Anonymous4:32 PM

    I love attorney advertising.

    The key is to compete on quality a and not price.

    Don't quote prices over the phone.
    If they sound like they have money, bring them into the office for a consultation. Measure their fear compared to their expectancy, then charge them a good fee.

    If they don't want to pay, or have too complex a case for the money,let them go. You want to get the most money for the least work.

    Looked at that way, this can be a good business.

  5. Anonymous1:01 PM

    I completely agree. Attorney advertising is a disgusting disgrace that cheapens our profession. There is a reason why it is so common. It's the only legal option. Attorneys who buy big loud advertisements are not the attorneys who get the most clients, they are, with a few exceptions, the attorneys who get any clients. It is illegal not to run client relationships like an assembly line, because advertising costs are not a benefit, they are a requirement. The reason is that the alternative is illegal, and is being more and more seriously illegal as time proceeds due to the lobbying efforts of powerful law firms and big business.