October 10, 2008
Legal Department
The Truth About Hiring a Criminal Defense Lawyer
The latest buzz in the legal blogosphere is Brian Tannenbaum's e-book The Truth About Hiring a Criminal Defense Lawyer. Both Mark Bennett and Scott Greenfield like it, which tells me it's pretty good advice.
I'm not a lawyer, nor an expert at hiring one, but I took a quick look at this 28-page pamphlet myself, and it seems like a straightforward explanation of the types of lawyers you might need to hire and how to choose one who won't let you down.
Tannenbaum's pamphlet is refreshingly devoid of the usual judgement-free advice you normally get on this subject. A few examples:
Unless you've been lazy or had your head buried in the sand hoping it would go away, be weary of a lawyer who pressures you to make the decision immediately.
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If a lawyer tells you he wins all his cases, again, leave now.
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There are good lawyers who advertise, and there are lawyers who advertise who are, well, not so good, but look good in the yellow pages or in a 4 color brochure in your mailbox. We're all "available 24 hours," and we can all write a check to the criminal lawyers association. Most of us are aggressive when we have to be, and can take a good photo.
...
"Knowing" people in the system never hurts, but no otherwise incorruptible judge is going to suppress evidence because she's friends with the lawyer, no prosecutor is going to "take a dive" in court because he's on the defense lawyers basketball team, and the most you can expect from a police officer is that because he knows the defense lawyer...he may tell the prosecutor to give you a break.
This is good and useful stuff, much better than the usual bland "how to hire a lawyer" advice you'll find on your local bar association's web site.
Read it. Learn it. Live it.
That said, however, there are a couple of paragraphs that give me pause...
Do not ever call a lawyer you are thinking of hiring and ask how much he charges. He will immediately think you are cheap, broke, and that you will waste his time in a consultation. On that note, don't ever ask if there's a consultation fee.
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The rule of thumb (and this is my rule of thumb, not some actual rule of thumb) is that you should hire a lawyer you feel comfortable with, who charges more money than you wanted to spend.
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Don't negotiate. You are facing jail. Do you really want your lawyer to be in the mindset that you are that client who didn't think he was worth his fee?In sum, you're in trouble, and you need a lawyer. You need to pay for that lawyer, and you need to pay for that lawyer now. An attorney client relationship that begins with money problems is a waste of time for you, and your lawyer.
Hmm. I'm a software developer by trade, and by strange coincidence, this whole "don't negotiate" strategy is exactly what I recommend if you're hiring a software developer. Trust me, it totally works!
I'm sure hiring a defense lawyer on the cheap is a bad idea for all kinds of reasons. If nothing else, you're probably going to need a favor or two that aren't technically part of your defense---explaining the situation to your family, intervening with Family Services, calling your employer to try to talk him out of firing you because you're a criminal---and a well-paid lawyer is going to find it easier to help you out.
I'm also pretty sure that once you hire a lawyer and agree to a deal, you shouldn't go back on your word and give him a hard time with his bill. When you're in trouble this deep, your personal honor may be all you have going for you, and your relationship with your lawyer needs to be built on trust.
But I just don't believe that a plea mill lawyer who takes $2500 to defend you and does no work on your case will do anything different if you pay him $5000, and a terrific lawyer who offers to defend you for $20,000 won't throw you to the wolves if you talk him down to $18,000.
Everything is negotiable. It's just a conversation.
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Two Ts, please.
As surprising as it may seem, Tannenbaum is right about negotiating a fee. When the first question out of a client's mouth is the fee, it tells us that he's going to be a financial problem. His life is on the line and his primary concern is the legal fee? Problem. I don't want to jump in bed with a problem.
Second, I don't quote a fee until after I have a firm idea of what the case is all about. I don't know that before we talk and I've read the papers. Clients are a notoriously bad source of information about their case. I've had clients charged with drug conspiracy neglect to mention that there is also a dead body involved. Oops.
But once I've fixed a fee, that's the fee. I don't charge more, but I won't take less. And I won't spend my time in a case fighting with a client over getting paid when that time is supposed to be used for fighting with the government over the case. It creates a seriously problematic conflict, for one thing, and the client only gets my time once, not twice. What do you do when your client is hiding from you because they owe money and you need to speak with them about the substance of the case with a surprise briefing due the next day?
If lawyer and client aren't on the same team, victory becomes impossible.
Mark, oops. Fixed.
Scott, I think I agree with almost everything you say. Of course you can't quote on a case without knowing the details.
But the problem you describe in the third paragraph is not that your client is negotiating. The problem is that your client is a deadbeat. As you point out, everybody loses that game. I have no problem with you trying to avoid clients who won't be paying you.
On the other hand, you say you "won't take less," meaning, I assume, that once you tell a prospective client your fee, you won't let him talk you down. Good for you, but that shouldn't stop a client from asking.
Tannenbaum's point that you probably don't want the $10,000 lawyer when everyone else is asking $25,000 is a good one. Whatever's going on, he's probably not selling the same service the other guys are.
On the other hand---and correct me if I'm wrong----if one lawyer is asking $25,000 and another is asking $27,000, there's no good reason to believe the $27,000 lawyer is really going to provide a defense that's $2000 better, is there?
It's not that it's inherently wrong, but if the client is going to haggle over $2000, he's likely to (a) be a deadbeat or (b) try to haggle over other things. I don't mind a client telling me the truth, such as "I can only afford $20,000, not $25,000." Then, it's up to me to decide whether I want to do the case for less. But if the sense is that he's going to haggle, good lawyers will usually chose not to take the case with a client where money will be a perpetual problem.
We may be wrong about it, but we won't take the chance.
Yeah, I see what you're saying. I've walked away from business where it seemed like I'd spend more time arguing about the job than doing the job.