Lawyers in criminal cases must know that many of whom they represent are going to lose, and likely aren’t of the kind of financial composure - or won’t be when the DA gets through with them - to be able to pay a five-figure bill.
No defense lawyer with a brain is going to represent you without getting the money up front.
I do know some lawyers who have represented family friends in criminal cases and ended up getting screwed over. Not much you can do if the deadbeat client doesn’t have any money to begin with. Whatcha gonna do? Take away their rusted Ford pickup with 200,000 miles on it?
Many states have some statutes that provide for attorney’s fees. Consumer protection and civil rights statutes usually provide for fee awards. But there are problems with these:
The fee award belongs to the client–not the lawyer.
Judges almost never award the actual fees. They usually award much less than is requested.
Seeking fee awards presents a conundrum–In order to file a motion for fees, one must incur aditional fees. Sometimes you can get paid for these fees too, sometimes not.
You still must collect the fees. All you get from a court is a judgment.
I agree with everything Gfactor says. But there are more fundamental problems with [b[lawboy’s** post.
First, he’s unclear. Is he saying that there are fee-shifting statutes that generally apply to civil litigation, which would give the prevailing party fees? If so, he’s wrong. I’m fairly confident that no U.S. state has such a statute or other rule. (and I guarantee that Illinois does not.)
Or is he saying that rules exist that give a judge discretion to award fees to one party as a sanction when the other party files a frivolous lawsuit? (I think this is what he is trying to describe.) If so, he’s correct on this narrow point. Federal Rule 11 (and similar rules in most states) allow a judge to do so. But his implication that these rules address the problem being discussed in this thread is incorrect. Such sanctions are rare. Just because one side is the prevailing party does not mean that the other side acted frivolously.
And his closing paragraph is also incorrect. If (Federal) Rule 11 did not exist, a Federal court could not “bring in” a state procedural rule (such as Illinois Supreme Court Rule 137), even in a diversity case where the Federal court looks to state substantive (but not procedural) law.
If any state did have a substantive prevailing party fee-shifting statute, then it could be considered by a Federal judge in a diversity case. But as I said above, I’m not aware of any such general statute. (As Gfactor said, certain narrow types of statutory claims have a fee shifting provision. If one such state statute was at issue in Federal litigation, it could be considered by the Federal judge.)
One big advantage that lawyers have over other professionals is that in contingency fee cases, I typically get one check from the defendant which I deposit to my trust account; then I write a check to the client and a check to myself. So my fee is pretty secure.
As other folks have pointed out, the other main way that attorneys protect themselves is to get money up front to put in a trust account. One piece of conventional wisdom is that in criminal defense and matrimonial cases, you should demand enough money up front to that you’ll be ok even if you don’t get another dime.
The other way to avoid getting stiffed is to avoid clients who present a collection risk. For example, just yesterday I got a call from a person who (1) lived out of state; (2) was not working; (3) had no other adults living in her household; and (4) had recently filed bankruptcy. Needless to say, I am not going to represent her on credit.
I’ve learned a few interesting (to me) things about collection:
First, IMHO, the best predictor of collection risk is if a working adult lives in the client’s household. If there’s a working adult who cares about your client, you have a very good chance of getting paid.
Second, peoples’ assurances that they do not present a collection risk are absolutely worthless. For some reason, deadbeats are very convincing when they look you in the eye and tell you it won’t be a problem for you to collect.
Third, watch out for people who are difficult to get a hold of. If their only phone number is a beeper, it’s often because they are ducking other creditors.
Conversely, if the person is easy to contact, and has the means to pay you (because they or a family member are working), then you have a very good chance of getting paid. Because you can start calling them regularly and they will eventually fold.
My dad has a private practice in Cleveland. He definitely doesn’t have the time or resources to go after these ‘deadbeats’. My sister was doing some office work for him, and was given the task of tracking some of these guys down… She’d get bogus replies, like “oh, he died”. She calculated that he’s owed over a hundred grand, and he’s just a smaller player in the game, I’m sure.
Let me assure you that lawyers, especially small town general practice lawyers, do get stiffed for fees and for expenses. Frequently it happens in cases when you just felt sorry for the guy and what looked like a small problem blossomed into a major big deal or a series of distantly related medium sized deals. Often your erstwhile client has nothing you can grab (more often what little the poor schmo has is either exempt or mortgaged to some other earlier, smarter creditor), some time he runs, some time he dies. All you can do is smile, chalk it up as “inadvertent pro bono,” and vow for the 500th time not to let yourself get suckered again.
In the end you do what hospitals do, take it out of the guys who do pay by jacking up your fees.
The rule in divorce cases is that the client is never happy, the case is never over and the client never pays. Nothing gives you that warm and humanitarian feeling like receiving a notice of bankruptcy filing from the guy that you just spent six months fighting and ugly child custody case for. Well, pissing your pants gives a similar sensation.
…not looking for sympathy, just giving the facts, ma’am, just the facts.
I wonder, though, how does the IRS treat uncompensated work such as this? Is it bad debt? Is it a charity donation (“inadvertent pro bono” as per Spavined Gelding)? If 50% of your billable hours aren’t actually compenstated, do you get away with not paying any taxes?
Hmmm, unless Victoria is very different to Queensland (which I doubt) a barrister’s security is firstly the fact that he is retained by the solicitor not by the client (and the solicitor can usually pay) and secondly if the solicitor does not, he/she will be blackbanned by the bar and will never be able to get a barrister to work for them.
I’m currently involved in two cases where we’re trying to collect legal fees due to my firm. In one of them it is very likely that we will end up spending more in billable time for the collection than we will win.
First, you avoid paying income tax on fees you are not paid because the work produced no income. This assumes that you are a “cash basis” taxpayer. Out of pocket expenses that are paid out by the lawyer are deductions. I do not personally know of any lawyers that file their income tax returns on an “accrual basis” where you act as if you received income when the client is billed.
Second, pursuing a non-paying client is the worlds quickest way to have the client file a counter-claim asserting professional neglect and error. That sort of thing offends the day lights out of malpractice insurers. Yes, lawyers pay malpractice insurance premiums, too.
As I understand it,(and believe me I don’t always do) Lawyers were (long past) in the church orders and wern’t alowed to collect fees. According to (that woman who presents the Rompole on T.V. whos name I can never think of) a barristers robe has a small pocked on the back which a renumeration can be deposited.
I’m sorry, I’m so loaded on cold meds. I’ve read this three times and I can’t make sence out of it.
Spelling and grammer (and logic) subject to change without notice.
Your post is inappropriate to the General Questions forum. Insults to entire professions belong in the BBQ Pit. Insults to entire political families belong in the BBQ Pit, or if you have some kind of point and aren’t just ranting, in Great Debates.