Sunday, February 7, 2010

Stickiness and Legal Fees

The contrast between the law's soaring ideals and the more prosaic reality of paying the bills intersect at the moment the attorney-client relationship is formed. Yet in all the great and not so great fiction about lawyers and the law, fees are almost never discussed. Indeed, even the celebrated cases that become the staple of folklore leave the question of fees largely unaddressed. How much, for example, did O.J. Simpson or Imelda Marcos really pay for their defense? Why the silence about fees?

I suspect it has to do with a certain moral ambiguity. There is nothing edifying or easy about asking a person in trouble for money. The ideal of a lawyer as crusader for justice does not easily square with the image of the esquire as businessman. "Sure, sir, I will be happy to defend you, but first on the matter of my fee ..." This is a difficult transition.

Our firm typically charges flat fees for criminal cases. I wonder, sometimes, whether that makes sense. The client buys an ideal, and with it the limitless sense that the lawyer is available 24-7 to discuss his thoughts, feelings, fears and goals. The lawyer, on the other hand, remains bounded by the realities of running a law practice: the demands of trial in another's case, the need to pay the bills, manage a staff and attend to the needs of his other clients.

When these realities collide, the results are rarely pretty.

Scott at Simple Justice has written in recent weeks about the demands of the so-called big fee client. I read his pieces with a gnawing sense of frustration. There really ought not to be multiple standards for clients: all, regardless of fee, should get the same level of commitment and care. But Scott raises an honest point: the market in human suffering is price sensitive. Client's with unlimited means get unlimited time from their lawyers; those with more limited means get less time. The reason is simple: like it or not, time can be transformed into money, and necessity governs a law practice.

The other day a new client of ours expressed frustration that he had not seen enough of me. I've been in trial in capital felony case since early January. When my firm was retained in the new client's case, we were explicit that associates cover pre-trials when I am unavailable. Where I sit, being in trial in a capital felony is a fairly compelling reason not to be in a pre-trial elsewhere. The client thinks otherwise. He needs reassurance, validation of his feelings, face time. He's paid for a lawyer, hasn't he?

But what is the nature of the fee and the relationship between lawyer and client? We're not therapists, at least we're not trained to be therapists. And what is the nature of the fee relationship? A flat fee filtered through the limitless demands for assurances unrelated to the representation quickly transforms the fee into less than the minimum wage.

I once read a book by a famous lawyer who reported that in the days of his youth, when he was just starting out, he'd bill insurance companies for every hour he thought about the case he was defending, even time spent in the shower. I've wondered about that in recent weeks. I am a special public defender in a capital case, and I am paid a rate far below what it takes for me to make ends meet in my firm. But it is the sort of work I love, and so I do it for love. But as I lay abed tossing and turning the other night I wondered whether I should bill for restless night. You see, all night I was honing questions and angles of approach for a cross examination yet to come. I was not so much thinking about the case as the case had, as cases do, taken possession of me. The evidence is never really far from my mind now, no matter what I do. Do I bill for this time?

It seems like a reach to bill for a bad night's sleep: Would I charge a blended rate of half the state's hourly rate?

Not long ago, I had a big fee case that lasted for three-plus years. The client sometimes emailed half-a-dozen times a day. The client challenged every premise of the law and had a particular angle on each fact. Never content to simply accept my assessment, hours, hundreds of hours, were spent on what I thought were wasteful research and debate. But the client demanded the time and paid the bills. Yet even there, I left many hours unbilled. The sheer waste of answering the same questions over and over again overwhelmed me.

So here's the sad reality of the law: We breed expectations in clients that they cannot afford. And we lock ourselves into commitments that, in some cases, we cannot afford to honor. The cases in which this happens most often involve clients all sharing a characteristic I call stickiness: They are the sort who ask a question, get the answer, and then conceive another question. When that question is answered, another question arises and so the dance goes, on and on and on and on into infinity. A sticky client's needs are eternal, but their checkbook rarely is.

How to balance the needs of clients and the need of a firm for fees is a challenge I have yet to master after many years of trying. It is a discouraging reality that even legal fiction refuses to address.