Should a criminal defense lawyer include expenses in the fee for representation?

Criminal defense attorneys charge either by the hour or on a flat fee basis. There are advantages and disadvantages to both billing methods (see Paying a Private Criminal Defense Attorney to read about them), but each is viable. A lawyer may require one arrangement or may ask which the client prefers. No matter the arrangement though, the agreement must account for the payment of expenses.

Expenses are distinct from a fee: Fees go to lawyers for their work, while expenses go to third parties. Expenses facilitate representation—they may include, but aren’t limited to:

  • expert witness fees
  • investigator fees
  • travel
  • copying and document preparation, and
  • service of subpoenas and other documents.


With an hourly billing arrangement, the delineation between fees and expenses is typically clear: The lawyer bills for a specified number of hours at an agreed-upon rate and separately invoices costs.

But when a flat fee is involved, expenses can get sticky. Flat fees often involve a set dollar amount for representation before trial and an additional amount should the case go to trial. Some lawyers include the cost for expenses in the flat fee for representation. This might sound like a great plan for a client because it suggests cost certainty. But some in the legal profession believe prospective clients should be wary of flat flees that encompass expenses. That’s because any expenses that the lawyer incurs come out of his or her pocket.

EXAMPLE: Saul charges Pete $3,000—expenses included—for representation in a drug possession prosecution. He figures it will be an easy case, that he can convince the prosecutor to dismiss a possession-for-sale charge in exchange for a plea to simple possession. But in reviewing the police reports, he notices inconsistencies in witness statements. He believes that Mike, his investigator, might be able to get statements from those witnesses and others that could help disprove the charges against Pete. But Mike charges $100 per hour and will probably spend ten hours locating and interviewing witnesses. Realizing that using Mike will reduce his take-home from $3,000 to $2,000, Saul decides to tell Pete that an investigator’s services aren’t needed.

Clients should feel comfortable with their attorneys, including when it comes to finances. If a lawyer you’re considering hiring proposes a financial arrangement that you're not comfortable with, consider looking elsewhere.

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