The Fee Agreement

Mark Bennett writes about the criminal defense lawyer's contract here. Mark correctly states that any criminal defense lawyer handling retained cases should develop a good contract, or fee agreement. I disagree with Mark on one point, however. I think the prudent defense lawyer should execute a written fee agreement in every case in which she receives a fee. It's just good, sound business practice.

I love open-source code of any sort (see previous post) and Mark offers an "open-source" contract for our review here. Several of the terms I find indispensable are:

1. The contract distinguishes between the lawyer's fees and out-of-pocket expenses. It is important for the client to know they will be responsible for all out-of-pocket expenses incurred in the defense of their case;

2. It limits the representation to one trial. Years ago I did not require an additional fee for any "retrial" of the case and had to try a case again for free. Not good for either the lawyer or the client, by the way;

3. The contract excludes representation for an appeal. Again, a good idea to require a separate fee agreement for any work beyond that at the trial level;

4. The contract is for a fixed, or flat fee. Mark and I both like fixed fees in criminal cases. It gives the client a sense of security knowing what the representation will cost up front. It also saves the lawyer from the drudgery of keeping track of every "tenth" of an hour spent on the case;

5. It informs the client that non-payment of agreed-upon fees permits the lawyer to withdraw from the case. This helps communicate the importance that clients honor their financial obligations to their lawyer; and

6. It states the lawyer has not, nor can he, guarantee any specific result in the case.

A couple of suggestions for improving the open-source fee agreement are as follows:

1. Legal representation does not begin until the agree-upon "contract fee" is paid. That may be implicit in Mark's open-source code, but I like making it very clear; and

2. The client is obligated to advise the lawyer of any address change, or change in telephone number. This sounds like nit picking, but believe me it comes in handy when the client refuses to cooperate and properly communicate with the lawyer.