Minimum Fees For Criminal Defense Work?
The economic slowdown has finally trickled down to street lawyers. Clients now struggle to pay even modest fees. There is little by way of easy credit, and even less in home equity. As for credit card advances, well, good luck. But trouble keeps coming, and folks need lawyers. Lawyers also need work. It is a recipe for disaster.
I tried a habeas corpus case last week. Among the claims were that trial counsel failed to conduct a meaningful investigation of the allegations against the client, who was charged with possessing cocaine with the intent to sell. The case started with the allegations made by a confidential informant. Then police conducted a controlled buy. Then the client was interrogation, followed by search warrants leading to a hidden stash and cash. One of the lawyers in the case took $2,000 from the client to represent him.
The client ultimately pleaded guilty to the charges, and received a prison sentence of 14 years. He'd previously been convicted of narcotics offenses and had served a seven year sentence.
Most folks don't plan ahead for the trouble that comes their way. Rare is the man or woman living on the other side of the law who truly views an arrest and the expense associated with defense as a cost of doing business. Even those who are realistic enough to realize that a life of crime has consequences rarely have the economic wherewithal to plan ahead. Most crimes are crimes of passion; those that require deliberation are often driven by necessity. The criminal class isn't that different from those who abide by the law: we're all scrambling to pay our bills.
I wonder as I field calls from folks in harm's way and negotiate fees whether there ought to be mandatory minimum fees for criminal cases. I've heard stories of hungry lawyers agreeing to represent folks charged with serious felonies for $500. It is difficult to comprehend how such a fee can be adequate.
Much though I shudder over the thought of bar regulators setting fees, it does not offend to consider the possibility of mandatory minimum fee structures. In a tight economy, the race to the bottom will often yield lawyers who have undertaken representation of a case without a fee sufficient to assure that the lawyer pays attention to the file. The result in such cases will be claims of ineffective assistance of counsel and a loss of confidence in the integrity of the criminal justice system. (I know, I know: there is a whole lot more wrong with the ystem than mere fee structures.)
In last week's habeas, the court held that counsel had done enough to represent my client. That result was unsurprising. Habeas relief is rarely granted. The courts are adept at fudging the realities of a case just enough to make even the most untidy result look fine and dandy. But trench lawyers know the truth: It takes time to represent a client well. Claims must be considered, and either perfected or rejected based on sound strategic thinking. Not taking enough of a fee to permit you to do your job isn't stratgey. It is professional suicide. The person who dies isn't the lawyer, however. It is the client.