Historically, there have been fee disputes between lawyers and clients. Abraham Lincoln had a fee dispute and ended up suing for a $5,000 fee. Percy Foreman, whom I had the honor of talking to several times, and who with Allen Isbell co-wrote an article appearing in the HCCLA magazine, was sued several times over what clients claimed were excessive fees. Percy took money, stocks, bonds, cars, gas, motorcycles, furniture, and anything that was of value. He told me he would take everything a client had or could get for his fees. At the time of his death, $5,000,000 in bearer bonds was found in a sports coat he had hanging in his hotel room.
One reason for the 611 opinion is outlaw lawyers—lawyers who charge a lot of money and do nothing. I have met too many of those people and I am sure you have too. A lawyer in Houston is under federal indictment for taking a large sum of money in exchange for a promise to get a case fixed. Garth Bates, a criminal district judge in Houston, was sent to prison for taking bribes to fix cases. Historically, some prosecutors have taken money to make sure a case will not be filed. As stated many years ago by TCDLA, gunfighters do not charge by the bullet. Each case is different and each lawyer is different. Some lawyers may be able to get something done in a quick manner because of their experience and expertise, while others would lollygag forever and not get the job done. A lawyer might get a case no-billed because of a fast draw, while other lawyers complain when a case is no-billed because they state that then they cannot charge a fee. It is a disgusting idea, but there are bad apples in every barrel. We are in a big barrel. Who does the client want to hire? John Wesley Hardin, the fast-draw lawyer, or Rance Stoddard, the lawyer who was thought to have killed Liberty Valance but really did not.
A lawyer-client communication is the key to this whole dilemma. Make sure there is a clear understanding about what your fee will be for the services you are providing. Some of us have been blessed to charge a substantial fee just to be hired on a case. I call it a consultation fee. That is my fee for meeting with a client, investigating a case, and then giving a list of what I think I can do for him/her. The only promise that I can make is that I will do my best and do everything ethical to represent a client. After the consultation, I set a fee based on what I believe can be done.
The problem with fees arises in 2 ways. First, the client is a fool and complains work has not been done or the proper result was not achieved. NEVER MAKE GUARANTEES OR PROMISES, never tell the client you have special connections with the judge or prosecutor, and never take illegal proceeds or stolen property. Second, the lawyer does not do his/her job. Unfortunately, there are lawyers who take money and then laugh all the way to the bank. These lawyers are the ones who cause the dialogue about fees. To avoid this problem, make notes of every phone call, every jail visit, every client meeting, all work you do, and all of the work your investigator and assistant do.
Do not overreact to this advisory opinion. The issue has come up many times before. Do your job and follow your oath and remember the men and women who have, and are, fighting and dying to preserve our Constitution. The TCDLA Ethics Committee is continuing to work on this important issue, and when we get all facts and an answer, it will be announced. Unless you are independently wealthy, you need to be paid for your services. Make sure you do what you took an oath to do; otherwise, go to work for the government or be an insurance salesman, car salesman, or stock broker.
Meanwhile, when you get a client in an ethical manner, quote your fee, explain the fee, and when the client says they have no money, take the case on a pro bono basis or do what I do. If the client has no money, ask about stocks, bonds, coin collections, cars, guns, or motorcycles. The last case I took on I was representing a former police officer. He said he had nothing, just an old ski boat. I said bring it to my office and he did. It was a nice boat and now it is for sale.
The opinion issued September 2011 has raised a lot of concern among criminal defense attorneys over non-refundable fees. The 611 opinion is advisory only. All of the ethics committee co-chairs, along with myself and other lawyers, are trying to comprehend the 611 opinion and prepare our members on what to do. The Ethics Committee is like Las Vegas. It is open and available 24/7, 365 days a year. We never close. Our team has helped many members with ethical issues that have arisen and will continue to do so.
And remember, as Professor Ray Moses at South Texas College of Law would say, only 3 things work for free: mules, tools, and fools.