Please Vote No on the Texas State Bar Referendum

EDITOR'S NOTE:  Unless you are a practicing attorney, this article is going to mean nothing to you.

Back when I was a prosecutor, I generally paid little to no attention to what the State Bar of Texas had going on within its ranks.  The Office made it easy to do that.  When it came time for Bar Dues, the Office paid them.  If there were elections, or Bar Poll rankings, there was usually an Office-wide e-mail letting us know that we needed to vote or otherwise participate.

Other than that, there was very little interaction.

That changes when an attorney goes into private practice.  You no longer have someone else to act as a liaison between you and the State Bar, and you have to keep a close eye on those votes and referendums that they propose.

I'm telling you this because first thing tomorrow (Tuesday) morning, voting begins on the State Bar's 2011 Referendum on the Texas Disciplinary Rules, and even if you are a prosecutor, I'm hoping you will take time out of your schedule to vote "No" on them.


If you are anything like I was when I was a prosecutor, you are more than likely asking yourself "why the hell would I care about a bunch of rules that only pertain to lawyers in private practice"?

The simple answer is because sometimes you might end up in private practice.  Even if right now you are pretty sure you are going to be a Prosecutor for Life.

Now, the rules that concern me aren't the ones prohibiting sexual contact with clients.  If a lawyer is stupid enough to enter into a romantic relationship with a client or (God forbid) take sex as a payment for services, then that lawyer has got more freaking problems than the State Bar can regulate.

The ones that concern me are the others, which, if implemented would basically collapse private practice as we know it.  If you are hoping to someday come into private practice, the Regulations that the State Bar's referendum is currently trying to pass will make it more complicated and more restrictive.

And trust me, starting a new law practice is already complicated as it is.

Mark Bennett has been doing an excellent job of covering and analyzing why the proposed new rules are so bad.  Starting with the first proposition that would essentially ban the taking of flat fees from clients an attorney represents.  As Mark put it, the effect of this would ensure that "only the wealthy will be able to afford competent counsel in criminal cases."  Paul Kennedy also does a good job of illustrating what the problem is with this post.

The new rules would, in essence, prohibit a criminal defense attorney for quoting a fee for representation and replace it with hourly billing that (in most cases) is going to cause costs to go up for a person charged.  

For example, let's say I typically quote a client a flat fee of X amount of dollars to represent them for a Possession case.  I think it is the fair amount.  If I resolve the case quickly -- great for me (in a business capacity).  But if I get into a quagmire and I spend a lot more time than I had anticipated (and quoted my fee based on), then the client isn't going to get screwed by me going over (a time) budget.  He has a pre-arranged fee and he isn't obligated to pay me any more money.

The new rules would prohibit that and require hourly billing.  The downfalls of that are numerous.  I'm not going to re-invent the wheel by regurgitating what Mark and Paul (and a host of other attorneys across the State) have written, but I strongly encourage you to educate yourself to the Referendum.

Once you do, I'm pretty sure that you'll see that a vote of "No" is the only appropriate vote if you think there is even the slightest chance that you will ever end up in private practice.


Anonymous said…
These proposed rules regarding fees only benefit the large firms that bill high hourly rates. These "ethical" rules are detrimental to any lawyer who doesn't charge by the hour. Or, all lawyers who don't work for big firms (plaintiff lawyers, family lawyers, criminal defense lawyers, etc.).

The big firms see this as a way to get back some of the work that they lost due to the tort reform that they supported. For example, Baker Botts lost a lot of its Ford business to Brown McCarroll because Brown McCarroll struck a "flat fee" deal with Ford. The big firms, such as Baker Botts, believe that by forcing firms away from the flat rate, they will regain business when its a matter of billable hour v. billable hour.

These big firm ass holes never considered that they aren't the only people who make a living practicing law. And they don't care what these rules do to the lawyers who don't work for the same "elite" firms that employ glorified law clerks at $200k/year to write memos about semicolons and call themselves "litigators."

I'm a prosecutor, and I vehemently oppose the new fee rules. Please vote NO!
Anonymous said…
God forbid any attorney should be held accountable for his/her fees being reasonably related to the actual work performed. Contingency and flat fees are generally exploitive windfalls understandably supported by the profiteering attorneys. The argument that the poor wouldn't be represented otherwise is a red herring. Let's be honest,if these proposed rule changes increased lawyer fees there would be no complaints from the Bar membership. Arbitrary attorney fees based on a client's ability to pay or fear of incarceration should not be determinative of the fee. The actual work performed should be the basis of any legal fees. The service is the same regardless the size of a client's wallet or his perceived fear--a reasonable fee is just that. If any other industry operated in this fashion it woud be these same lawyers complaining, but arguing the other position. Maximizing profit while minimizing effort is no longer an acceptable business model for lawyers. The exploitive practices of investment bankers and other financial speculators will be scrutinized soon and who believes Mark Bennett will have a problem with that. I'm sure this comment makes me a bitter, angry, blah blah blah government employee but that won't change the coveted greed of some in the private sector.
Anonymous said…
Anon 10:16am,

As a "bitter, angry, blah blah blah government employee", you receive a flat fee (salary) for the work you do. Why deny others the same benefit?

Further, are you suggesting that hourly billing is not exploitative? You rant and rave about greed, but still champion the device through which Big Law has bilked billions.

Most of my clients favor having a hard number they are responsible for paying. It allows them to gather enough money to pay their expenses on a payment plan and budget accordingly. Simply stating that an argument is a red herring doesn't make it so. Your logic smells fishy, though.
Anon 10:16 said…
Anon 10:50,

First, as a salaried employee I am given a set fee if you will in return for my performance of certain duties. If I do not fulfill those duties I am not paid. If the flat fee or contingency fee that you covet so highly was placed in a trust account and drawn upon as actually earned (as the rule changes suggest) and the unearned balance returned to the client then your analogy is applicable. PI attorneys don't sign up a case they don't have a high degree of confidence in and the client is raped in the split. Criminal defense attorneys' flat fees rarely short change the attorney and never more than once. If I am wrong in this assessment why the Hell are the flat fee lawyers so upset with the change? Do criminal defense attorneys really want to charge their clients less money? Your mom won't even buy that load of crap. As to the billable hour issue there is no doubt that abuse is wide spread. Often times attorneys low ball their hourly billable rate and bill 100 hours/24 hour day. I hope Corporate America and small businesses become much more aware of the abusive overages as they scrutinize their legal fees with much more diligence given the economic times. I don't buy the argument that one dishonest type of attorney allows for another to be dishonest in a different way. The over billing, whether it is through padding billable hours or excessive contingency/flat fees, needs to be curtailed. Working off a retainer fee in a fair and reasonable manner is what the public deserves. Lawyers need to clean up their game generally and this is a good start and that's why I vote yes on the referendum. Thus endith the red herring lesson.

Anon 10:16
Anonymous said…
Paul Kennedy writes:

"Do away with the flat fee and clients will be forced to pay even more money to a defense attorney as a deposit against future expenses in every representation.

How does that benefit someone accused of a criminal offense? Most of our clients struggle to pay us the fee we quote. Do away with the flat fee and who will be able to afford to put down even more?"

Why would a "deposit" by definition have to be so much higher than the flat fee?

Are Kennedy's flat fees so low that they don't even cover his costs?
If so why would he want to keep it that way?
It's just amazing he's still in business considering how much money he's losing in the flat fee business.

Kennedy's clients sure are lucky to get the great flat fee cost saving deals at the Kennedy law firm!

I wonder if Kennedy is being subsidized by the ACLU to keep his lights on?

Who believes this shit Murray?
Murray Newman said…
Okay, for those opposed to flat fees, let me throw out this scenario:

Let's say that based on my level of experience and knowledge, I decide that my time is worth $250.00 an hour. Just for the sake of the argument.

I get a client charged with a Misdemeanor assault case, and my ideal would be to charge him a flat fee of $5000. I decide I think that is fair and he agrees to it. That covers trial and everything (for the sake of the argument).

My client and his family and friends call me at all hours of the day and night. They want to meet and/or talk. I, of course, oblige them. I answer all questions until they run out of them. I take statements from their witnesses. I visit the scene. I make court appearances.

And lets say (for the sake of the argument) that before trial time, I've already spent a good ten hours doing all the above mentioned things. Under a flat fee, they aren't going to be penalized for all the extra time I've spent talking to them and going over the case.

And then, they want to set the case for trial. I spend another four hours drafting up my voir dire and putting it on PowerPoint. Under the flat fee, that's all covered.

And now it comes time for trial. If I'm billing by the hour, then my fees are going to be $3500, before trial even starts. Assume that it is a two day trial, running from 9 to 5 every day with a lunch break. That's an additional fourteen hours (or an additional $3500).

That's a total bill of $7000, when I only would have charge $5000 to begin with.

So, to make sure that I won't be hitting them up in the middle of my representation for more money, I'm going to charge a bigger retainer up front than I would have under my flat fee. I'll refund them the difference, of course, but I'm going to have to ask them for more than I would have, just to cover the costs. I don't want to be chasing them down for money (that they may or may not have) while their case is still pending.

They can't afford that type of retainer so they go find an attorney who will charge them less.

Just food for thought.
Murray Newman said…
And let's talk about another side effect that the Bar hasn't considered.

Let's say that the client knows I'm billing by the hour, but he has a couple of questions he wants to ask me. He decides that he doesn't want to ask me those questions because I'll be charging him when he calls. So, he decides that rather than EFFECTIVELY COMMUNICATING WITH HIS ATTORNEY, he won't make that call.

Well, that's terrible for effective representation.

You have to remember that (unlike major law firms), most private practice attorneys aren't representing huge corporations with unlimited funds. We are representing citizens who have to somehow balance a budget to hire us. We realize that when we set fees, and we price competitively with each other.

As the rules are now, a client can hire us and know exactly how much it is going to cost him and he's going to feel free to communicate with us to his heart's content.

If we don't do our job to our client's satisfaction, then he has remedies against us.

I still fail to see how the proposed rules help the individual charged.
Anonymous said…
Murray #1:
I love you like a brother man but family lawyers do fine with the model you present.
When the client knows he/she is being billed for silly bullshit as well as important stuff the client will either stop the silly bullshit or pay for the privilege.

If the fee is reasonable and the client has a legitimate question the conversation will occur. Superfluous bullshit will be at a minimum as it should be.

Bottom line: if a criminal defense attorney's fees are in line with the work product the value of services will prevail in equitable fashion for all parties.
A client will evaluate not only the billable hourly rate but also the attorney's efficiency and results before signing on--as clients become more educated with the system,the market will adjust an individual attorney's billable rate accordingly.
Holding a client hostage out of fear and essentially forcing him to go into extraordinary financial hardship for a plea deal is outrageous unless you are the one collecting the fee.
Anonymous said…
If criminal defense attorneys were sincerely worried about their client's incurred costs then they wouldn't charge them so much fucking money. It's pretty damn simple, all the bullshit aside.

One's definition of greed depends on who is paying and who is receiving.
Murray Newman said…
Anon 3:19 p.m.,

I love you too, whoever you are.

Yes, I understand that it is workable, but so is the current situation. I like being being able to not have to worry about chasing down clients for fees as part of my representation. Family law clients and criminal law clients do have many similarities, but there are some differences, too.

Anon 3:35 p.m.,

That's pretty pious thinking. I suppose if all prosecutors really cared about the job they were doing, they would work for free, right? Are you trying to shame defense attorneys into doing everything pro bono?

Under this principle, I'm certain you will turn down the next raise that you are offered.

The job of a defense attorney is still a job and a business. I threw out the number of $250 an hour, but the reality is that there are many more who charge much more than that per hour. Put yourself in the shoes of a client with moderate to low income and ask yourself what you would want.

The reality is that a rule like this is going to work very well for those who charge $50 or $100 making appearances for clients.

I'm not naming any names, but we know who they are and we know the "quality" of representation they provide.
Anonymous said…

I never stated that criminal defense attorneys should work for free just that they should charge a fair price commensurate with the amount of services provided.

When an individual is most vulnerable and suffering his desperation can be capitalized on or treated fairly with dignity and respect--it's your call.
Anonymous said…
In a family law case, when the client is out of money, the judge will allow the attorney to withdraw from the representation. In a criminal law case, the judge will say "should have gotten a larger retainer, call your first witness." This will cause the defense attorneys to charge larger retainers so that the money will last for the entire case. Otherwise, the attorney will be working for free when the money runs out.
Anonymous said…
Anon 6:47,

Are you really saying that under the current system when a criminal defense attorney charges a flat fee and the expenses exceed that flat fee the attorney is not working for "free", but that under the proposed new system that same attorney would have to charge a much higher retainer fee because otherwise the attorney would be working for "free" when expenses exceeded the retainer fee?

And all this time I thought that criminal defense attorneys were out to protect the disadvantaged from the mean oppressive "win at all costs" government.

Greed is a much more powerful adversary than any prosecutor it seems.
Anonymous said…
No criminal defendant ever paid a legal bill after being found guilty and sent to jail. Thus, family law cases and civil cases are far different from criminal defense cases.

/s/ glad to be a salaried prosecutor
Anonymous said…
Anon 10:57's synaptic mis-firings are self evident and demonstrate the truth in, "you can't fix stupid".
Anonymous said…
Anon 10:57,

David Skillings, Jr. (obviously a client out of your league) might disagree, but I digress---so what exactly was your point?
Anonymous said…
Anon 2:11,

10:57's point is simple: "Money talks and bullshit walks."
Anonymous said…
I think lawyers who don't have the experience of actually billing for their work don't really understand how it all works in practice.

I think flat fees actually save clients money and it gives them an opportunity to know how much something is going to cost from the get go.
Anonymous said…
Anonymous 9:12 said...
"I think lawyers who don't have the experience of actually billing for their work don't really understand how it all works in practice."

Many people, including criminal defense lawyers, fear change. Maybe some new billing software will ease the transition.

"I think flat fees actually save clients money and it gives them an opportunity to know how much something is going to cost from the get go."

Is your goal really to save your clients money? If so, agree never to charge them more than the flatfee and reimburse that portion that was not actually earned. Seems simple enough. But we all know you don't want to refund a damn thing so don't insult anyone with the implication of wanting to save your clients money.

The bottom line is that the flat fee is more than fair to cover all reasonably anticipated expenses or it would be higher and if the case can be plead out without going to trial the return is even better.
To argue otherwise ignores sound business practices under the current system....all I'm suggesting is that pigs get fat and hogs get slaughtered.
Anonymous said…
Criminal defense attorneys have a proclivity to argue the incredulous--"if it don't fit you must acquit" and now "flat fees save our clients money".

If Al "Global Warming" Gore wouldn't have flunked out of law school, I have no doubt he'd have been a criminal defense attorney.....
Anonymous said…
We heard budget cuts will result in some prosecutors and investigators being terminated. Is this true? Who is going to send bad guys away?
Anonymous said…
I'm amazed at how empathic many government employees are when it comes to whether or not our clients are being ripped of by flat fees.

How come y'all aren't so caring in morning docket?

In reality, the argument is fueled by contempt for the defense bar...nothing new there.
Anonymous said…
Anon 4:58,

Just because the mean spirited G-men and women you reference don't drink your Kool Ade doesn't mean your fee scedule is remotely fair.
The crooks are simply getting a 2 fer--we prosecute them for their bad behavior and you rob them for it.
So who is really more contemptuous?
Anonymous said…
The county lawyer employees who think they are secure in their jobs are in for a shock when they are terminated. Then they be interested in bar rules when they have to live with them.
Anonymous said…
Anon 6:19,

Equity isn't for everyone and neither is rape.....we'll be just fine treating people with fairness and respect, regardless which side of the Bar we're on.
Judgment day will come for all of us.
Anonymous said…
Am I missing something, or doesnt the Rules of Ethics already outlaw Flat Fees.
Anonymous said…
No post about the latest moves in the DA's office?

Lazy bastard.
Murray Newman said…
Well, I don't dispute being a lazy bastard, but I haven't heard about there being new moves. If somebody sends me something, I'll weigh in.
Anonymous said…
Anon 12:59,

The 2011 State Bar of Texas Referendum Part A proposes changing the prohibited flat fee standard from "unconscionable" to "clearly excessive".

A new standard for new economic times......the trend to curb abusive elitism is refreshing and should apply to attorneys as well as politicians and CEOs.

How the new standard will be interpreted and by whom gives lawyers on the ethical edge it should.
Anonymous said…
No one needs to send anything just look at the new Flow Chart for the Office.
Anonymous said…
Down in flames baby!

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