Criminal

Flat Fees in Criminal Cases and Grievances

So that came out and we got our discovery bill. So what we are wondering if this is going to change the way the prosecutors are handled in the State of Texas. I guess we will wait to see. I want to shift gears a little bit and talk about our Grievance Process in the state of Texas because I did have the opportunity when I volunteered for the State bar committee to travel all over the state. Hear defense attorneys from all over the state and grievances from all over the state and I can tell you the number one question that I get asked that is of a concern to criminal defense lawyers is “can we charge flat fees”. That’s what we really want to know right. I understand that and the rules do not prohibit it, for some reason with all of the changing of the potential rules that all got flushed and we didn’t change the rules.

There was a big concern that the rules prohibited flat fees. What the issue is, that there is this terrible ethics opinions out there that says that a non-refundable retainer cannot be placed into an operating account and that’s a big issue is this rule 611 but as you talk to state bar people they will tell you rule 611 is just an ethics of opinion it’s like an opinion.

It does not have any weight, they don’t have to enforce it but it’s out there, so the issue became can a nonrefundable retainer can be placed into an operating account and this opinion says only if the fee in its entirety is reasonably earned and is retained solely for getting the lawyer’s service. So the fee has to be earned when it’s received. It has to say that it is because I am turning away other business and so now I am the lawyer on this case and it’s clear that these people have no concept of criminal law cases when they say it has to go into a trust account because we all know if we take a criminal case we can be on the hook till the judge lets us off and I’ve been even on the hook for cases for appeals that I haven’t been paid for because the judge did not let me off.

So the ethics opinion really did not make sense. If they payment that represents, if a payment is made and it’s actually for future services then it has to go into a trust account. So the rules require that any unearned fee must be returned to the client. Unearned fees belong to the client and therefore any advance fee must be kept separate and that means in a separate IOTA account.

So why was this such a big deal. This was such a big deal because of 3rd court of appeals issued an opinion about non-refundable retainers and they simply said in this case the lawyer had charged a non-refundable retainer said in his connect, nonrefundable but then he billed against it and the 3rd court of appeal said “calling it nonrefundable does not make it so”. This was an advanced fee an advanced fee for services in the future and because of that it had to be put into a trust account.

Unearned fees have to go into a trust or IOLTA account and records of that account have to be kept for five years. So this was a big issue when I was serving on the commission for lawyer discipline. We have a new state bar website Texasbar.com where they can add these things for lawyers and one of the things that we got them to do was to do a separate section for lawyers on trust accounts and if you see down there, there was actually a lawyers guy to trust accounts.

This was written by our CPA and these are people who understand this and it’s a very good helpful hand if you don’t know how to setup IOLTA account, how to get this up and running to be sure that you do not come in to conflict with the rules. So what is the deal on flat fees, they can be earned at the time they are received but your contract needs to say that. This needs to say this fee earned when it’s received. It can be earned because the attorney is available and has given up other opportunities. But don’t bill against it and a nonrefundable retainer cannot be if it is not earned. So they really hate that word nonrefundable and they really want you to understand that retainer talks about future fees.

The issue is really whether the fee is unconscionable or illegal. Isn’t that really the case because our clients are not filing complaints of the state bar saying “oh my lawyer deposited that check in to wrong account. He didn’t put it in his trust account”. They are saying want their money back, he did not earned it. It’s really whether it’s an unconscionable or illegal fee but don’t fall into the trap of a billing against a nonrefundable retainer.

If you file a complaint against the lawyer, that says “I don’t like this lawyer” that is not a grievance. If you file a complaint that says “I don’t like my wife’s lawyer” that is not a grievance and it will get dismissed. This is the one that really ought to scare us, for years that personal injury lawyers and the family lawyers has thousands more grievance then we did. But the most recent statistics are that criminal lawyers are now have the most complaints filed by area of practice on criminal lawyers.

So what’s the number 1 complaint? Failure to communicate, you have a duty to keep the client reasonably informed about status of the case and to comply with reasonable request for information. Always get this question on. Tell my client he wants me to tell his wife, I tell his wife and all of his girlfriends starts calling. Yeah I understand, I have been there, I’ve done that, I know what you are talking about and that’s not a reasonable request for information and this rule is specific to the client. Now neglect used to be the number 1 complaint. It has a very specific definition, it’s frequently failed to carry out the obligation owed. So who can file the grievance? The client, the former client, the family members, the SBOT, judges–you get the kind of just of this, anybody can file a grievance.

We would have lawyers answer the grievance and say “this wouldn’t my client so I am not going to answer it” no. No, anybody can file a grievance and respondent is a lawyer who has a grievance filed against him so anybody can file but understand that neglect is good faith is not neglect. Just doing an unskilled act or a slight omission of a case maybe not filing every single ocean that you could have filed is not going to be considered neglect. Neither is malpractice, that is when lawyers tell clients that you know that deferred to adjudication, that’s not going to show up on your record, well that’s bad legal advice but that is not neglect.

The one that we have the biggest concern with is ineffective assistance of counsel that may or may not be neglect depending on what happened. Just having an allegation of ineffective assistance does not necessarily translate to agreeable offence. So what’s our duty upon termination? This is the next big issue on when people have an issue about with their lawyer and this is one that commonly is misunderstood in the state of Texas but the file belongs to the client.

We have a duty to return the file upon being terminated even if we haven’t been paid and this generates a lot of grievances. So what also we also tend to be in a position of representing attorneys who are being convicted of a crime and what happens that is called compulsory discipline that a lawyer shall not commit a serious crime. I love this though, it was written by a lawyer so the definition of a serious crime is a felony involving moral turpitude or any misdemeanor theft or barratry.

So conviction of a crime if you are advising your client lawyer about deferred adjudication, deferred adjudication counts, if they take deferred adjudication for a class C shop lifting theft that they can be disbarred, deferred adjudication counts but on the serious felonies, felonies involving moral turpitude that is not possession of cocaine.

So that’s a SC case, possession of cocaine is not a serious felony involving moral turpitude and therefore neither would felony DWI that falls under the compulsory discipline. The person they also have lots of other problems and there client may be filing neglect charges but under the compulsory section, they would not be subject to being disbarred just for the conviction of crime. The SC said that even when a lawyer has completed their probation for one of the serious felonies, in this particular case it was a serious felony theft that they had completed and discharged the probation, they could still be disbarred because it’s totally up to the board of disciplinary appeals whether they are going to suspend the lawyer or disbar the lawyer.

Francisco Hernandez

Author Francisco Hernandez

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