The Business of Criminal Defense

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The practice of law is a profession, but it is also very much a business like any for-profit enterprise. The fundamental fact that the practice of law is a business is something ignored by law schools, which are more concerned with teaching impractical, esoteric theories and how to pass the bar exam to ensure their bar passage rates remain high enough year-after-year to attract new applicants and keep the money machine operating at full tilt. Likewise, bar associations like to pretend that the practice of law is a profession not a business, seemingly stuck in the days of powdered wigs and brass-buckled shoes when the law was a profession of privilege, occupied by a small fraternity of the wealthy who had access to higher education. Even then legal services were given in exchange for money or other things of value. Law schools and bar associations have an aversion to the reality that lawyers and law firms can only operate by making a profit and that requires marketing, advertising and sales, a reality that makes law schools and bar associations hold their noses and avert their eyes in disgust. This systemic aversion is evidenced by the absence of courses in building and running a legal practice and shrinking employment rates after graduation. You may be the best lawyer in your city or your state, but if you can’t attract clients, how much you know and how good you are don’t mean anything. Not only will your practice flounder, but people who need your services may not get the help they need because they don’t know you exist. That said, just like any profession or business, there has to be some reasonable rules in place to prevent unethical and predatory practices.

Houston is a highly competitive legal market that gets tighter and more competitive every year with three law schools, all within a short distance of one another, spitting out hundreds of newly minted lawyers every year flooding an already oversaturated market. The white shoe firms will hire the law school grads in the top five or top ten percent of their class to breathe the rarified antiseptic air of Big Law, which leaves hundreds of others looking for work with small and medium-sized firms or to hang their shingles as solos. Congratulations! Here’s your diploma, good luck in your solo practice even though we didn’t teach you one damn thing about running a law practice and no, knowing The Rule in Shelley’s Case won’t help you. For whatever reason, too many brand new shiny lawyers gravitate to either family law, which requires a strong stomach and a love for hand-to-hand combat over furniture and children, or criminal law because there is this flawed belief that any monkey can practice criminal law. As a result, this infestation of new, inexperienced lawyers has diluted the practice, and diminished the quality of representation. Some of it is the result of these lawyers not having a clue as to what they’re doing, but some of it is due to unethical business practices.

The business of law requires that lawyers operate with dignity, credibility and ethics. For people charged with crimes, faced with losing life or freedom, the services of a good, qualified lawyer are invaluable. Over the last five years, many of my colleagues have seen a disturbing negative shift in the business. The influx of new and inexperienced lawyers, desperate for business and clueless to the value of serious cases, have created a Walmart-like market attracting clients as the low cost providers of an inferior product.

I recently spoke with a well-known and well-respected lawyer with many years of experience who told me about meeting with a prospective client who was charged with four aggravated robberies and faced, at minimum, five to 99 years or life in prison. The lawyer quoted the man a fee of $40,000 for all four cases, a substantial fee but not unreasonable given the amount of work the lawyer would have to put into four separate cases and the fact that the client faced life in prison in each case. Prospective clients who meet with one lawyer but hire another rarely call back to tell the first lawyer they hired someone else and why. In this case, the prospective client told the experienced lawyer he first met with that he hired another lawyer, a new lawyer with little experience, because the inexperienced lawyer agreed to take on all four cases for only $4,000.

In another case, a defendant hired a new, inexperienced lawyer to represent him in an aggravated robbery because he charged him $2,500, considerably less than the $15,000 an excellent, experienced lawyer quoted to represent him. No lawyer worth his salt is going to take on a serious case like aggravated robbery for such ridiculously low fees. These “bargains” without fail turn out to be the most expensive decisions bargain-hunting criminal defendants make, paid for on the back end by convictions and lengthy prison sentences.

Highly qualified professionals charge higher fees because their services are valuable. The greater the experience, the greater the success, the higher the fee. You don’t look for a budget doctor if you’re ill. If you need surgery you’re going to select the best and most qualified doctor not the one who gives you a 30% off coupon. Likewise, it doesn’t make sense that a person facing life in prison or an otherwise significant sentence would bargain shop lawyers and hire the lowest bidder, who is usually a new lawyer taking on a case that’s over his head and on the cheap. This in no way benefits the client.

In fairness, some folks who don’t qualify for an appointed lawyer but who also don’t have a lot of money have no choice but to hire the best lawyer they can afford. Even a good, reasonably priced lawyer will charge a fee appropriate to the seriousness of the case. There are, however, many defendants who have the financial means to hire experienced, qualified lawyers. I haven’t seen an empty courtroom yet. Now more than ever, the criminal justice center is teeming with bottom-feeders who charge by the setting and provide little to no value to their clients. They lure in clients with low fees and promises they can’t fulfill.

Another reason for the tightening criminal defense market in Houston is the unethical and illegal relationship between some shady bonding companies and ethically-compromised lawyers. Not all of these lawyers are fresh out of law school, but the new ones are the easiest to hook by dangling the promise of a steady stream of business and money as bait. The bonding company is usually the first point of contact for a criminal defendant and his or her family. Once hired, the shady bonding company will tell the defendant or the family that they have to hire a particular lawyer, a huckleberry on their list. The lawyer will then take the case for a considerably lower fee than the case merits and kick back a percentage of their fee to the bonding company. It’s the Walmart business plan of running a law practice: low prices and high volume. If one of these lawyers has 200 or 300 clients and their fees range from $1,000 to $2,000, let’s say $1,500 on average, that’s an annual revenue of $300,000 to $450,000. If we assume an annual kickback of 10%, that’s $30,000 to $45,000 for guaranteed business. That’s a pretty damn good deal for the shady lawyer and the crooked bondsman but a bad deal for the client because the lawyer cannot possibly give each client’s case the attention required when the lawyer has an unmanageable caseload of 200 to 300 cases. This practice not only hurts the client, it also hurts the profession and the good lawyers who do excellent work for their clients, albeit at a higher fee, and who have the experience and can dedicate the time their client’s cases require. A quality lawyer’s business is not predicated on high volume. A good lawyer is also not willing to hop into bed with crooked bondsmen and compromise their ethics and integrity.

I suspect that the general public isn’t going to feel sorry for a bunch of lawyers who make more money than the average person. But defendants need to know that good representation comes at a higher price because it is valuable, and it is valuable because it can save their life or keep them out of prison. In criminal defense, the old adages of “buyer beware” and “you get what you pay for” are most poignant because the results can be devastating if not heeded. No defendant will be satisfied with the money they saved when poor representation sends them to prison. Every year, the state bar conducts a survey asking lawyers to disclose the percentage of their caseload dedicated to appointed (indigent) defendants because there is a concern that some lawyers may have more clients than they can effectively represent. The state bar has no such inquiry into how many hired cases or total cases a lawyer carries. If the state bar is concerned about maintaining the integrity of the profession, it could pay more attention to how many cases lawyers carry at any given time. If a lawyer has been in practice for many years and employs other lawyers to assist him in his practice, a high caseload is considerably less suspicious. If a lawyer who graduated law school a couple of years ago has 200 to 300 retained cases that raises all sorts of red flags. Perhaps the bar would be interested to know how a new lawyer is able to carry 200 to 300 cases at any given time and where those cases are coming from. Maybe if the bonding board was a little more proactive against the bondsmen steering clients to lawyers for kickbacks, the bottom-feeders — lawyers and bondsmen — who prey on the ignorant and desperate and the stupid and cheap, would get flushed out of the system.

Some who read this article may conclude that this is a rant about money. Well, you’re half right. Neither I nor anyone I know went to law school to be poor. We didn’t endure countless hours of lectures and study and exams and accumulate over $100,000 in student loan debt so we could struggle financially. Any lawyer who says money didn’t factor into their decision to go to law school is either lying or comes from money. Believe it. However, those who went to law school solely for the promise of future riches went for the wrong reason. Practicing criminal law comes with immense responsibility for other people and that has to be the driving force for any criminal defense lawyer. However, in exchange for the hard work and carrying the burdens of our clients, we charge and expect a fee that reflects the value of that service. There are a lot of excellent lawyers in Houston who charge reasonable (not cheap) fees and there is no reason for anyone to have to hire a bottom-feeder or a crooked lawyer. For the bottom-feeders who run their practices on cheap fees and high volume and provide their clients with inferior representation and for those lawyers who pay bondsmen kickbacks for clients, you’re doing your clients and your profession a grave disservice and one day your gravy train will leave the tracks and the state bar will punch your ticket. The good lawyers will gladly watch the carcass of your law career get buried next to your slimy predecessors and maybe even toss a handful of dirt on it for good measure.

About Brian Roberts

Brian M. Roberts is a criminal defense lawyer and former prosecutor. He has prosecuted virtually every type of state case and has an even broader defense background. He participated in the proceedings of the International Criminal Tribunal for the Former Yugoslavia as a member of the defense team for the former president of what was known as the Republic of Serbia – Autonomous Region of Krajina Crisis Staff. He is fluent in Serbo-Croatian and conversant in Spanish. Brian appreciates that people who find themselves facing criminal charges literally come from all walks of life. Additionally, Brian is board certified in criminal law by the Texas Board of Legal Specialization. Connect with him on twitter: @BMRlawyer.

Comments

  1. Steve januhowskI says:

    Another nice read Bry Ro. The “Bleed them and Plead them” crew gets bigger and bigger!!

  2. I find word of mouth, referrals and trying cases instead of pleading them out grow your business better than any ads.

    By the way, my office is getting about 10 phone calls a day on legal malpractice claims. Not all are good and it is a disturbing trend.

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