Bad Lawyer. No Cookie.


Paraphrased actual letter from lawyer to first-time DUI client:

Dear X,

You have told me that you can’t afford to pay me to try your case. This forces me to ask the judge to allow me to withdraw from your case. Three bad things might happen as a result.

First, the judge might revoke your bond and take you into custody.

Second, the judge might not allow me off your case. As you haven’t paid me to prepare for trial, I obviously can’t do so, and you will probably lose.

Third, if the judge allows me off your case, the judge will probably not appoint someone to represent you. So you’ll either have to hire somebody else, or proceed pro se, in which case you will probably lose.

In Texas a judge can’t legally revoke a person’s bond for firing her retained lawyer. Not that the illegality would stop some Texas judges from doing so, but the particular judge whose court this client’s case fell in wouldn’t revoke the client’s bond for firing the lawyer. Maybe the lawyer isn’t familiar enough with the court to know this, but at least a nod to the fact that the judge would be acting outside her authority in doing so might have put the client’s mind to rest a little bit.

But, of course, the lawyer’s purpose in sending this letter is not to put the client’s mind to rest, but rather to scare the client into either coming up with the money for the “trial fee” or pleading guilty. We know this because of her second threat, which is far beyond the pale.

Once a lawyer has appeared in a case, she’s on the case until the case is over or she’s been permitted by the judge to withdraw. While she’s on the case, she has a duty to represent her client to the best of her abilities. She doesn’t get to stop working on the case when the client stops paying.

If the question were one of expenses — expert witnesses or investigators, for example — the lawyer could ask the court to pay for those expenses. The Court of Criminal Appeals in Ex Parte Briggs said that a Texas criminal-defense lawyer, even one hired by the client, can be ineffective for failing to apply for court money for experts.

But if the client is unable to pay the lawyer’s agreed-on fee, the risk that the judge won’t let the lawyer off the case falls on the lawyer, not on the client.

It would be unethical for the lawyer to drop the client in the grease for non-payment. Either the lawyer in question doesn’t know this (in which case she needs reeducation) or she knows this and would do it anyway (in which case she needs disbarment), or she knows this and wouldn’t really do it, but is making the empty threat to bring the client in line.

In which case, what?


0 responses to “Bad Lawyer. No Cookie.”

  1. or she knows this and wouldn’t really do it, but is making the empty threat to bring the client in line.

    In which case, what?

    She gets to be a Superlawyer?

  2. We regularly get notices of a motion to withdraw from defense attorneys. They also send a copy to Client. Then, on the day of the motion they stay in 98% of the cases. Basis of the motion? It is accepted practice around here to take monthly payments. Some clients stop paying before trial date. Attorney moves to withdraw. Money magically appears. When it doesn’t judge assigns counsel and gives a continuance for new counsel to prep case.

    • JSRP, Threatening to withdraw is, of course, different from threatening not to work if allowed to withdraw. Any ethical lawyer is not going to make the latter threat; any competent lawyer is not going to put it in writing.

  3. what has not been mentioned here, putting aside case law on expenses for indigent defendants and the legalities of withdrawal based on non-payment of fees, is that the lawyer who wrote that letter is a complete asshole.

    I know you frequently use the term “asshat,” however we here in Florida rarely use that term.

  4. A larger issue is trial fees and payment plans. Not all lawyers are willing to go to court and fight for their client sans payment. Those lawyers should get all their money up front, or prosecute.

    My contract has clear language and policies regarding payment and withdrawal. However, the risk of non performance is all mine. Threatening to botch a trial or have your client incarcerated for failure to pay is an unethical way of shifting that risk to the client. I’ve heard similar dialogue more than a few times in the courtroom hallways. For some reason in writing it always looks worse.

    Finally, I need some bailout money to start a company offering low interest criminal defense attorney’s fee loans. Who’s with me?

  5. This would almost blow my mind, except for one thing. There are private attorneys in our town who typically grossly (and by “grossly,” I mean hugely, seriously, majorly, whatever-else-makes-it-clear-this-isn’t-piddly) underbid all other attorneys for cases.

    It can be nearly-impossible to compete with these guys if you don’t already have a huge “rep.”

    Yet it’s well-known (or at least well-discussed amongst other attorneys) that they pretty much just walk their clients to a conviction.

    Frankly, it makes me wonder what the point of State Bar admission is. There are people who can’t get admitted who would do a better job than the above-mentioned attorneys. To SOME extent (many public defenders being the exception), you DO get what you pay for.

  6. That’s the kind of letter that makes me hang my head in shame. There are a lot of great people in this profession, but then there are those kinds.

  7. Wow. I’d be afraid to say such things to a client, much less put it in writing. It’s somewhat ironic that this is a lawyer doing this, as we are the ones who are supposed to advise people against memorializing something so brazenly unethical.

    That being said, I’m hanging on to a copy of this letter for next December. Collections can be tough around the holidays.

  8. I don’t care what any lawyers do or what any bad things anybody says about them. I still like all
    lawyers. Well done, of course.

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