Every day attorneys across Virginia commit grand larceny. No area of law is exempt. Whether it’s criminal defense lawyers charging flat fees, or civil attorneys and their hourly billing, lawyers everywhere are taking their clients’ money but doing little meaningful work.
THE HOURLY BILLING RACKET
Let’s start with hourly billing. Law firms most often mandate that their lawyers bill a minimum number of hours every month or every year. If the attorneys fail to reach the minimum they do not receive a bonus. Bonuses are how most lawyers make real money. So inherent in every law firm is the incentive to BILL BILL BILL. Nothing pressing needs to be done on the Smith case? Bill it anyway.
But bill for what? The vast majority of legal disputes are not that complicated. Unless you’re involved in a complex financial matter or high-stakes federal prosecution, chances are that your case involves a limited set of facts and a few relatively straightforward legal issues.
THE “SIMPLE” DIVORCE
Most lawyers are honest people. The problem is that “most” only means 51%. The divorce attorneys at my firm are some of the finest people I know. Unfortunately, they are often up against attorneys in the “other 49%”.
Take a typical divorce for example. Two people get married (which technically costs them next to nothing unless they have a reception), have children, buy a house, collect some retirement savings, and then for whatever reason call it quits. Emotions are high because two life partners who presumably love(d) each other are splitting for good. Matters become even more heated when children are involved, often with either side grandstanding on how they deserve full custody.
Enter the lawyers. Instead of counseling their clients to a quick resolution, they feed off the emotions of the soon-to-be exes. This is done through incremental hourly billing.
Rather than honestly telling their clients that absent extraordinary circumstances courts will order custody as evenly as possible, they encourage the withholding of visitation and trumped-up allegations of unfit parenting. Where the home could easily be granted to one or the other after a mortgage refinance, both sides end up fighting until the court forces a sale. Where retirement savings are almost always split equitably based on set factors, lawyers feed the myth that one side should take the other for
“everything [s]he has”.
And how do the divorce lawyers earn the bulk of their fees? Usually not by crafting any novel legal arguments or constitutional claims. Instead, lawyers often conduct mostly unnecessary discovery whereby they insist the other side produce boxes of old bank statements and credit card receipts so they can have their paralegal scour them for casino ATM withdrawals or purchases from Chanel. How will they use this information? They won’t really. Instead, they will insist that the other side is hiding something and then take them to court on a “rule to show cause.” When they get to court, the lawyers will perform their song and dance and the judge will roll her eyes and send the parties on their way with a warning to get along. Each side will be responsible for their own attorney fees despite both claiming it is the other’s fault for bringing them to court, to begin with. All the while, they are missing work or explaining to the kids why they have to go to court so often.
Eventually, both sides run out of money to pay attorney fees. At this point either the attorneys withdraw from the case, or the attorneys all of a sudden push a settlement. The parties will muster up a few additional dollars to sign a packet of papers that outline a shared custody/visitation schedule and divide assets close to evenly. Both sides will be told they got the best deal possible. What they won’t be told is why it took 18 months and $30,000 to get it.
Divorce and family law generally should not be a lucrative area of law practice. Only in cases with substantial assets and complicated tax issues should attorney fees get above $10,000. Most of the time, divorce clients are taken advantage of because they are upset, confused, and/or vengeful. Rarely does anybody “win” a divorce, and the children of the marriage almost always lose. Absent extraordinary circumstances (such as domestic abuse or complicated financial matters), divorces should be done with limited discovery and capped fees.
THE FLAT FEE CRIMINAL DEFENSE SCAM
Why do most criminal defense lawyers charge a flat fee as opposed to billing hourly? Because in most cases, if they charged hourly they would never be able to justify enough work to actually bill the client for any time. Take your standard case of DWI/DUI (these are the same thing by the way). First I will give a standard fact pattern, followed by the approach taken by a generic, lazy criminal defense attorney.
John is 28-years-old and has a good job as a government contractor. But like many of us, John has student loan debt and is saving money for a house. He does well, but is by no means rich.
He leaves his office in D.C. on a warm Thursday evening and heads back to Arlington to meet friends for some drinks at a rooftop bar. Instead of dropping off his car at home and taking an Uber, John drives straight to the bar. He lives close by in Falls Church and doesn’t plan to drink too much, so he figures he will be fine.
But it’s a nice night and a pretty girl catches his eye. The two chat for a while and John has one more beer than he had planned. He leaves the bar “fine to drive” and on top of the world after exchanging numbers with his new lady friend. He heads west on Washington Blvd. when he is spotted by an officer with the Arlington County police, a notoriously aggressive police force that decided against using body worn cameras despite being located in one of the richest counties in the U.S.
The officer activates her lights and John pulls over. When the officer comes to the window, she tells John that he swerved and asks if he has been drinking. Petrified and unprepared, John questions whether he swerved but admits to having “two beers” and hands over his driver’s license. The officer tells him to step out of the car for field sobriety tests (FSTs). John complies, unaware that he has a right to refuse.
In the officer’s subjective opinion, John “fails” the FSTs, even though he feels like he did quite well. John is next offered a preliminary breath test (PBT). He has a right to refuse that as well, but the officer doesn’t tell him (and by law is not required to). He blows into the PBT device and registers a 0.11, over the legal limit of 0.08. John is shocked that just two beers could raise his BAC to that level. He isn’t even inebriated.
Regardless, he is immediately arrested and his car is impounded. He spends several hours at the jail after taking another breath test (registers a 0.10). John is told that his driver’s license is now suspended for 5 days and that he must submit to pre-trial supervision before his court date.
Now John needs help. He needs his driver’s license to commute since he does not live near a Metro station. He also has a security clearance and is scared about losing his job.
ENTER THE GENERIC LAWYER
Picking a lawyer is like picking a mechanic: no one really knows until they know. A referral is best, but unlike car repair, people are too embarrassed to ask their friends or colleagues when it comes to criminal defense attorneys. So John gets on Google and begins his search. He sees several “top lawyers” with all sorts of credentials. He picks the one that came up first in Google and sets a phone consultation.
John explains what happened, his security clearance, and need to commute. Like the divorce lawyer, this lawyer also plays off John’s fear. He begins by telling John that a DWI in Virginia calls for up to 12 months in jail, a $2,500 fine, and a 12-month license suspension. He tells John that if a few tactics are employed, he can keep John out of jail and get him a restricted driver’s license for work. But he also cautions that “these things can get expensive” and quotes a fee of $5,000. John is so relieved by hearing he can avoid jail and keep his license that he gladly pays the fee.
[What John wasn’t told was that no one charged with a first-offense DWI on these facts would face a real risk of going to jail, and that virtually everyone convicted of a DWI is entitled to a restricted license for work. In reality, John could save his $5,000 and show up to court alone, plead guilty, avoid jail, and get a restricted license.]
The court date arrives and John meets his lawyer in the hallway. His lawyer tells him he spoke with the prosecutor and that the case against him is “airtight”.
But lucky for John, his lawyer secured him “a deal” that avoids jail and gets him a restricted license. In exchange, John will pay a fine, go on probation, and have an ignition interlock machine installed in his car for six months (at his expense). His lawyer tells him this is the best he can do. John thanks his lawyer, signs the paperwork, enters his guilty plea, pays another $1,000 in fines, costs, and fees, and is on his way (about $6,000 poorer and now with a criminal record).
What exactly did John’s lawyer do to earn that $5,000 fee? Not much. How many hours did he put into John’s case? Between initial court filings and the court date itself, John’s lawyer probably worked 4 hours at the most. There was no trial, no motion to dismiss, no effort to convince the judge that John wasn’t actually intoxicated despite the breath test. John’s lawyer put on a suit, had a coffee with the prosecutor, talked about John’s case for 5 minutes, and advised John to plead guilty.
Had John’s lawyer done the case on an hourly basis at $400/hour (which is on the high end), John would have paid $1,600 in lawyer fees. Instead, John paid $5,000 for a result he could have achieved without a lawyer. This is the most common Flat Fee Scam: pilfering from uninformed clients and lazy lawyering.
WHAT AN HONEST LAWYER WOULD HAVE DONE
John’s case is one perfect for a trial. Just because he registered a BAC above the legal limit does not mean he is guilty beyond a reasonable doubt. The court considers all evidence bearing on the issue of intoxication, including the FSTs, driving behavior, demeanor, recency of alcohol consumption, and more. Here, virtually every factor other than the BAC weighed in John’s favor. If planned and executed properly, John’s trial could have resulted in an acquittal.
Even if the judge found John guilty of DWI after a trial, his sentence would not have been any worse than the sentence he received after his plea of guilty. In fact, it would likely be exactly the same or possibly better. Every experienced lawyer knows this. But while honest lawyers make prosecutors work for their convictions and challenge the evidence against their clients, lazy lawyers make life easy for the prosecutors and take advantage of their clients.
HOW TO AVOID LAWYER THEFT
I never blame the clients in these situations. Most people are law-abiding and have no experience with the justice system. But if I were John, or in a divorce, or a small business owner with a legal problem, I would do the following when selecting an attorney:
- Do Your Due Diligence in Online Research. Don’t pick an attorney just because they appear at the top of Google or flaunt a bunch of awards. Most awards mean nothing (except for a few like Super Lawyers). My inbox is inundated with solicitations from random organizations telling me I was named top this or best that and asking me to pay for a plaque and website badge. In fact, here’s a link to one I received today from The American Registry (whatever that is). Instead, look for CLIENT TESTIMONIALS on attorney websites or sites like AVVO. These cannot be faked.
- Ask Your Potential Lawyer Questions. How are such cases generally approached? What are the consequences for similarly-situated people? What are the pros and cons of going to trial? How are fees determined? Will there be any other costs?
- Be Willing to INVEST in Your Attorney. Hiring a lawyer is like hiring a contractor. Whatever he or she does is going to have permanent effects and will be even more expensive to repair. Quality work is not necessarily cheap. But fees should always be fair. If you target the cheapest option, you will get exactly the results you pay for. But the most expensive option also is not always the best. So approach hiring a lawyer like you would making any other investment. Carefully evaluate your level of trust and comfort before pulling the trigger. Do not let your emotions or fear of the unknown control your decision making.
- Insist on a Written Representation Agreement. The Rules of Professional Conduct strongly encourage attorneys to use written agreements. Make sure all terms and clear, including fees, costs, and the scope of the attorney-client relationship (e.g., does the fee include other matters that may arise, etc.).
- Ask for Flat Fee or Capped Billing in Civil Cases. A flat fee operates as a cap. The fee won’t get lower, but it also won’t get any higher. Many “top” civil attorneys will not agree to this for the reasons outlined above. But even if billed hourly, total fees can always be negotiated and a cap can be put in place to control costs.
Witnessing lawyer theft in this profession for over 10 years, I have dedicated myself to a Client Centered Practice. This means honest fees for honest work, providing my clients with as much information as I can, and guiding them to making the best decisions for their particular situation.