Attorney Fees What is the right amount? How should legal fees be structured?

Question: How much should I spend on a lawyer? What is the best way to structure the fees?

One thing is for sure when someone is looking around for a criminal defense lawyer and interviewing several potential attorneys, the amount of the potential legal fees is likely to widely fluctuate. Even the way the attorney fees are charged can vary greatly between attorneys.
Attorney Fee Right Amount

Different Cases, Difference Clients, Different Fees

A criminal case, whether felony or misdemeanor, can be broken down into several parts. Depending on how specific an attorney wants to be, the parts can be very general or very specific. For example, a felony can be broken down into (a) pre-charge, (b) district court proceedings, (c) circuit court proceedings, (d) trial preparation and (e) trial. An appeal can potentially be another phase as well. Another attorney may break a felony case down in a fee agreement into even more specific parts including, (a) pre-charge, (b) district court arraignment, (c) pre-exam conference, (d) preliminary examination, (e) district court motions, (f) arraignment on the information in circuit court, (g) pretrial conferences, (h) motions in circuit court, (i) evidentiary hearings, (j) scheduling or docket conferences, (k) trial preparation, (l) bench trial, (m) jury trial, and (n) sentencing.

There are a multitude of ways that attorneys can charge legal fees under the Michigan Rules of Professional Conduct. For example, an attorney can charge (1) one flat fee for an entire case, (2) a flat fee for each stage of a case, (3) an hourly fee, (4) a flat, nonrefundable fee, (5) a flat, nonrefundable engagement fee with an hourly component, etc…. There are so many options that a person, under the stress of a recent criminal allegation or charge, can become very confused.

 The Fee Structure Should Be Based Upon What’s Best for the Client

Depending on a particular person’s situation and financial circumstances, different fee arrangements may be appropriate for different situations.

Generally, there are a couple fee structures that fit most situations best. For example, on a pre-charge basis, if you hire an attorney to work on a case for the purpose of trying to avoid criminal charges, reduce potential criminal charges or to negotiate a surrender and bond prior to arrest, an up front flat fee with hourly competent may be the best option. The way this would potentially work would be that a flat fee would be paid and would cover legal fees up to a certain number of hours. If things get really complicated and take more legal time than maybe first anticipated, the legal fees would switch to an hourly basis. If a potential client has limited financial resources, he or she may prefer that the attorney simply work on a flat fee that covers them no matter how much time goes into the case. With this type of fee structure, the client can be assured that they will have full legal representation throughout the process and will not fear getting into a situation where additional legal fees become due and they cannot afford to pay the attorney.

 Flat Fees Per Hearing Can Spiral Out of Control

If there is an actual charge, felony or misdemeanor, a legal fee structure that can quickly get out of control is the one referenced above which calls for a charge for each type of hearing. When an attorney charges for each individual hearing as in the example, the fees can get out of control because many hearings are adjourned and repeated. For example, there can be 4 or 5 or even more pre-trials in one case. If the client is paying a separate fee for each hearing, the fees can spiral out of control. Although many lawyers are honest and will not take advantage of a client, the fact remains that some attorneys, like some people in every profession, will take advantage when given the opportunity. This type of fee structure is too lose and provides too much incentive for some attorneys to resist scheduling a multitude of unnecessary hearings.

Modified Flat Fee – Usually Best For the Client

The fee structure that tends to work best in most cases is the fee structure that charges a flat fee per stage of the case.

The example above that identified this structure was the one where the felony was broken down into (a) pre-charge, (b) district court proceedings, (c) circuit court proceedings, (d) trial preparation and (e) trial. With this structure, it doesn’t matter how long a case is at a particular stage, the fee does not fluctuate and the client knows in advance their financial exposure. Over the past almost two decades that I’ve been practicing criminal defense law, I’ve found that the overwhelming majority of clients have been most comfortable with this fee structure (both at the onset of legal representation and at the conclusion of the case and upon reflection). One exception to this general rule is for clients who only want to hire a criminal defense attorney on a pre-charge basis. Under these circumstances, there is sometimes no way to predict how much time may go into a pre-charge situation. In cases where there is no way to even predict the investment of time into a case, the best option may be the smaller flat fee up front with an hourly component that kicks in if the legal time exceeds a pre-set number of hours.

Hourly Fees – Rare for State Felony and Misdemeanor Cases

Vary few retained criminal defense attorneys charge simply by the hour in State Cases

This practice is common with federal criminal cases, civil attorneys, business attorneys and divorce lawyers but rarely with criminal defense lawyers. Coincidentally, I’ve found that most criminal defense clients in state cases are very uncomfortable with an hourly fee arrangement in a criminal case. Reasons that clients have shared with me as to why they would not hire a criminal defense lawyer on an hourly basis is that the time that can go into a criminal case can be extensive and very hard to predict; hence, legal fees can just keep accumulating and increase to an unsustainable level. Being charged with a criminal case is stressful enough without having to worry about the legal fees getting to a level that cannot be afforded and the attorney then asks the court to allow them to withdraw from the case leaving the client in a position of having to ask for a court appointed lawyer (a situation that many people would find unacceptable).

 Criminal Defense Attorney vs. General Practice Attorney

Often times you see that retained lawyer that charge by the hour on state cases are really not criminal defense specialists and are more likely general practice lawyers. In my opinion, if you are charged with a state felony or misdemeanor criminal offense, you want a lawyer who exclusively handles criminal cases. Think of this analogy, if you need heart surgery, are you going to seek treatment from a brain surgeon? I highly doubt that would be your preference. Of course you would want to see a heart surgeon. Both are doctors but the heart surgeon is in the best position to provide specialized care and have the most skill and knowledge relative to the intricacies of the heart. Similarly, the criminal defense lawyer is much more likely to know the intricacies of a criminal defense case and know how to handle the defense of the matter in the most effective way possible. The sections of the Michigan Court Rules that apply to criminal cases and criminal appeals are totally different than the rules for civil cases. Furthermore, there are tried and true techniques that are most effective in criminal cases that a general practices lawyer would not likely be proficient at. Finally, a dedicated, retained, experienced criminal defense attorney who is successful has likely spent years developing relationships with criminal docket judges, prosecutors and court staff that will help them navigate the complex waters of criminal defense work and a general practice lawyer would likely be able to do so with as much competence.

Attorney Fees Must Be Ethical and Agreements Should be in Writing

As it relates to the setting up of the structure of legal fees and the amount that a lawyer can charge for legal fees, the Michigan Rules of Professional Conduct provide general guidelines that lawyers must follow.

Although getting a Fee Agreement in writing may not be ethically required, I would never hire a lawyer without a written contract and I would be very dubious of any lawyer who does not offer a written, specific fee agreement. The contract should be in writing for everyone’s protection.

Michigan Rule of Professional Conduct 1.5 govern’s attorney fees and states as follows:

Rule: 1.5 Fees

(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or by other law. A contingent-fee agreement shall be in writing and shall state the method by which the fee is to be determined. Upon conclusion of a contingent- fee matter, the lawyer shall provide the client with a written statement of the outcome of the matter and, if there is a recovery, show the remittance to the client and the method of its determination. See also MCR 8.121 for additional requirements applicable to some contingent-fee agreements.
(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in a domestic relations matter or in a criminal matter.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the client is advised of and does not object to the participation of all the lawyers involved; and
(2) the total fee is reasonable.
It is important to note that section (8)(d), a lawyer is prohibited from accepting a contingent fee in a criminal case. This means that a lawyer may not charge or accept a fee based upon the outcome of a case. For example, a client in a criminal case cannot pay a lawyer a fee only if the lawyer wins a particular result. This fee structure may be acceptable in a personal injury case but it is explicitly prohibited in a criminal case.
As for the amount of the fee, the attorney must reasonably consider the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

You Get What You Pay For – A Great Lawyer Can Be Expected to Achieve a Better Result

Based on these guidelines, many factors get weighed to determine a fee that is reasonable and the fee will likely vary widely based upon the type of attorney being considered by a potential client. Lawyers who deal in volume, court appointed cases or who have a tendency to plead clients without putting up a fight, tend to charge much smaller fees than lawyers who are known to be successful, thorough and really put of a fight for their client to achieve the best possible result. Unfortunately the rule that applies to most things in life also applies to lawyers…you tent to get what you pay for. I’ve heard some attorney’s use an expression I find a bit humorous to explain this principle, “If you want fast food type service, you pay fast food type prices and if you want champagne quality representation, then the fee will be in conformity.”

Generally the principle of “you get what you pay for” means that the quality of representation is generally reflected in how much a lawyer charges; however this is not always the case and the client must be an informed consumer.

Lawyer who charge the biggest fees may not be able to provide a level of service that would justify their fees for many cases when other, well-known, respected lawyers may handle the case for a lesser fee.  Gouging does happen and the lawyer must be well researched to ensure he is as good as his fee would indicate.  Google is an excellent place to research a prospective attorney’s reputation.  Furthermore, services such as Avvo, SuperLawyers and Martindale Hubbell are great places to double check a lawyer’s qualifications.

Lawyers who charge bargain basement fees should generally be treated with extreme caution and wariness. There is a reason that they are charging the lowest fees and it probably is not that they are charitable and benevolent. It more likely means they are desperate for work or practice a quantity over quality type practice. Believe me, if you are charged with a criminal offense, you want a lawyer who is skilled, has an excellent reputation, his highly regarded by prior clients and who is determined to put as much time and energy into a case as necessary to achieve the best possible result for their client.

An Unusually High or Low Fee Can Be a Warning Sign

The bottom line is that if you are going to hire a lawyer, spending a decent but fair amount of money on a good attorney is a necessary evil. There can be no doubt that in a criminal case a defense attorney who is genuinely willing to fight for a client, who is highly skilled in their profession, and who truly cares about his or her client and the result in the case is invaluable.

I hope this information is helpful to you and I hope that it helps you make the best choice.

Mr. Loren M. Dickstein, Esq.
Michigan Criminal Defense Attorney
LEWIS & DICKSTEIN, P.L.L.C.
2000 Town Center, Ste. 2350
Southfield, MI   48075
www.notafraidtowin.com
ldickstein@NotAfraidToWin.com
24 Hour Emergency No. (248) 660-0022

An experienced attorney from LEWIS & DICKSTEIN, P.L.L.C. can offer additional information as well as a ferocious defense for any offenses. Your attorney is waiting to speak to you. Call for a free consultation at 248-263-6800 or complete a Request for Assistance Form and a defense attorney will contact you promptly.

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