I hate the Texas Bar Association. You should too. So should everyone who cares about whether people accused of a crime can find a lawyer to represent them.
I hate the Texas Bar Association because it is setting its sights on criminal defense lawyers: The unstated goal? Driving them into extinction. What’s more, the Lone Star state isn’t alone. Not long ago, the District of Columbia also cast an evil eye in the direction of criminal defense lawyers. Unless this madness stops, there will be far fewer folks willing and able to practice criminal defense.
The issue is fees, and how to collect them.
Criminal defense lawyers distinguish between the so-called street crimes and white collar crime. Into the later class fall the myriad of ways in which paper-pushers can bilk clients, employers and the government of their due, together with a bewildering array of regulatory offenses that keep even lawyers guessing just what the law prohibits and permits. The majority of white-collar defendants can afford legal services. Most often, they pay by the hour.
Then there are street crimes. The list here is familiar to all: murder, robbery, rape, drug sales – all the sorts of things that go bump in the night. These crimes are often crimes of passion, stupidity, or a crass inability to conform to the behavior required by law. Many of the people who are charged with these crimes struggle to pay legal fees. Few can afford to pay hourly.
Lawyers earning their living in the criminal law’s trenches know a thing or two about human need, and one of the first things learned is the first-date rule. A terrified client seeking to retain you in fear for his liberty has fallen in love with you. You are the mysterious stranger at the bar, the dream date, the fantasy lover offering a way out of a desperate situation. Like besotted lovers world over, a client on a first date with the a lawyer will say or do just about anything to get onto the lawyer’s list of clients. Hence, rule number one: Get you fee paid in advance.
This rule is necessary because once you sign on to represent a client, few judges will let you out of the case because the client stiffed you on a fee. Sure, the client’s promise you the moon. Try paying salaries, rent and bills with client promises sometime. Judges live in a magical world in which their efforts, skills and aptitude are detached from economic reality -- they get paid no matter how stupid their ruling, or how late they arrive to the courthouse – they know little of economic reality.
Lawyers nationwide are required to keep wto sets of bank accounts: One is an account to maintain funds belonging to others. This is a trust account. The other account is the firm operating account: From this account a lawyer pays his bills and himself.
When a client pays a flat fee for representation, where should the money go? Some say it should go into the trust account and remain there until it is earned. Few small firms can afford this practice. Many lawyers deposit flat fees straight into their firm account. In those cases in which a client terminates the lawyer, lawyers pay refunds for unearned fees out of their firm account.
Texas thinks that is too untidy. It wants all money held in trust until it is earned. This is another way of abolishing flat fees. Thus, if a lawyer’s hourly rate is $300, and a client pays $2,000 for pre-trial work, the client is entitled to precisely six and two-thirds hours of time. Depending on the case, that means the client gets about two court appearances, if the lawyer bills for the time he or she spends discussing the case with the client, traveling to and from court, reading the police reports and attending pre-trial hearings.
Once that $2,000 is earned, what’s the lawyer to do? On the reasoning of the Texas Bar Association, the lawyer should be able to withdraw from the case once the money runs out. I doubt the Lone Star bar heavies want to force their brethren to work for nothing. But that won’t happen. Judges hold lawyers to the bargains they strike. That is at it should be: Clients come first. That’s why we call it a profession.
For years, trench lawyers have lived by their wits. Adjusting fees based on the availability of work, their schedules and expenses. The fact is that all criminal defense lawyers lose money on a significant percentage of their files. Quoting fees is an art, not a matter of accounting science. Requiring hourly fees will mean that difficult clients go without lawyers: Let’s face it, many folks charged with crimes are in trouble because of mental health or substance abuse issue.
The relationship between a lawyer and client is complex. Many variables account for how a client picks a lawyer. The primary variable is trust. A client places his life and liberty in the hands of the lawyer; the lawyer takes a fee for the service. Bar regulators trying to force their way into the relationship will succeed only in making it even harder for ordinary people to find lawyers, especially in a bad economy, where money is tight.
Memo to Texas: Back off before clients get hurt. The new rule you propose might work for big firms awash in cash. It will be a disaster for small firms called upon to work big miracles for such fees as their clients can afford to pay. Or is it the case that Texans just don’t want little people living on the margins to have good lawyers?