One of the first questions you're likely to ask an attorney whom you're considering hiring is, "What will this cost?" Here's the low-down on how criminal defense attorneys charge for their services.
Criminal defense fees will vary depending on a variety of factors, such as case complexity, attorney experience, and location.
Most attorneys charge more for felonies than for misdemeanors, because felonies carry greater penalties, often require more court appearances, demand more preparation, and so on. The more serious a felony is (say murder vs. felony theft), the greater fees may be as well.
Generally, less experienced attorneys set lower fees than their more experienced colleagues. But higher fees aren't always a bad thing. An experienced attorney with a high hourly rate may be able to resolve a case more quickly and satisfactorily than a novice with a much lower hourly rate and, therefore, be less expensive in the long run. Also, be cautious when you encounter an extremely low hourly rate—as this rate can be misleading (more on this issue below).
Just as gasoline and butter cost more in some parts of the country than others, so do attorneys. A criminal defense attorney will charge more in New York City and Los Angeles than in other parts of the country. There will also be differences when it comes to urban vs. rural representation.
Because of factors such as those above, standard legal fees do not exist. But, as an example, a defendant charged with a misdemeanor that goes to trial should not be surprised by a legal fee in the neighborhood of $2,500–$5,000. In a felony case, an attorney may want an advance of around $3,500, plus $1,000 per day of trial. Moreover, most attorneys want all or a substantial portion of their fees paid upfront (in advance). Check out this survey on how much a first DUI (impaired driving) offense can cost.
Defendants who are billed by the hour pay for the actual time their lawyers devote to their cases—say, $300 per hour. They might also pay for expenses a lawyer incurs in the course of the representation, such as copying fees, subpoena fees, and so on. From the defendant's standpoint, there are advantages and disadvantages to hourly billing.
Advantage to hourly billing. Defendants who pay by the hour benefit if a case concludes quickly.
Disadvantages to hourly billing. If the case becomes unexpectedly complicated, it can get very costly. Moreover, hourly fees give attorneys a financial incentive to devote more time to a case than it may warrant or the defendant is prepared to pay. Also, most criminal defense attorneys set a minimum retainer fee that they keep even if a case is resolved with one phone call.
Get an estimate. Fortunately, experienced defense attorneys usually can anticipate how many hours they are likely to spend on a case, and a defendant should not agree to an hourly charge without getting the attorney's good-faith estimate of how much time the case is likely to take. (Getting quotes from more than one attorney is also a good strategy.)
Lawyers who charge by the case represent defendants for a fixed fee. For example, a lawyer may set a fee of $3,500 for a defendant charged with drunk driving. The fee would not change regardless of the number of hours the lawyer devotes to the case. As with hourly billing, the case billing approach has its advantages and disadvantages.
Advantages to case billing. The primary advantage of case billing is certainty. Defendants know going in what their cost will be, and the attorney bears the risk of unforeseen complications.
Disadvantages to case billing. With a case billing setup, a defendant may feel ripped off if the case settles very quickly. (In some quick settlement circumstances, attorneys will refund a portion of their fee. But many will not, and a client should not expect a refund if the case is resolved quickly.) Also, the fee may cover only the pretrial phase of the case; the attorney may require an additional substantial fee to actually try the case.
Seek clarification upfront. As with other types of information, the defendant should clarify these points before hiring the attorney A defendant may also agree to pay an hourly fee but only up to an agreed-upon fixed sum. After that amount, the lawyer finishes the representation at no extra cost to the defendant. This approach combines the advantage of paying by the hour while minimizing the disadvantages.
Whether they bill by the hour or the case, defense lawyers typically want defendants to pay a retainer fee upfront—before the attorney begins working on the case. For example, a lawyer who bills at the rate of $200 an hour may want clients to pay upfront for 20 hours of the lawyer's time, or $4,000. The lawyer should send the client regular statements showing how much time the lawyer has spent on the case, what was done, and how much of the retainer has thus far been used. If the balance in a defendant's account approaches zero, the lawyer will probably ask the defendant for an additional payment (unless the lawyer is working for a set fee).
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.