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, which vary according to such factors as:
The probable complexity of the case. 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 attorney's experience. Generally, less experienced attorneys set lower fees than their more experienced colleagues. But beware when you encounter an extremely low hourly rate (see below), which can be misleading. 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.
Geography. Just as gasoline and butter cost more in some parts of the country than others, so do attorneys.
Because of factors such as these, standard legal fees do not exist. According to a survey of readers reported in Consumer Reports, the median legal fee charged by lawyers in criminal cases was $1,500. (Median means that the fees were over the amount in as many cases as they were under the amount.) Because many of these cases involved only a consultation or a single court appearance, most defendants can expect to pay much more for full representation. For example, a defendant charged with a misdemeanor that goes to trial should not be surprised by a legal fee in the neighborhood of $2,000–$3,000; an attorney may want an advance of around $2,500, and $1,000 per day of trial in a felony case. Moreover, most attorneys want all or a substantial portion of their fees paid up front (in advance). (To learn how expenses figure into the financial arrangement, see Should a criminal defense lawyer include expenses in the fee for representation?)
Defendants who are billed by the hour pay for the actual time their lawyers devote to their cases—say, $150 per hour. They may 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.
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.
Lawyers who charge by the case represent defendants for a fixed fee. For example, a lawyer may set a fee of $1,500 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.
Primary advantage: Certainty. Defendants know going in what their cost will be, and the attorney bears the risk of unforeseen complications.
Disadvantage: Feeling that you overpaid, or having to pay for trial. With a case billing set-up, 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.
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 a defendant. This approach combines the advantage of paying by the hour while minimizing the disadvantages.
Whether they bill by the hour or by the case, defense lawyers typically want defendants to pay a retainer fee up front, before the attorney begins working on the case. For example, a lawyer who bills at the rate of $100 an hour may want clients to pay up front for 20 hours of the lawyer's time, or $2,000. 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.