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January 10, 2019 Boot Camp, Esq.

Ask Allison

By Allison Jackson Mathis

Dear Allison:

I am just starting out as a criminal defense practitioner and am having a hard time figuring out how to set fees. I feel like the “going rates” in my community are pretty high, but I also have to keep my lights on and pay my substantial student loan debt. Any advice?

Yours,

Fee Simple, Absolutely

Dearest, Darling FSA,

I would like to regale you, for a moment, if you have not been regaled already (and I am betting you have not) with a part of the saga of Burnt Njal, an epic detailing the finer points of a literally firey blood feud that took place in ancient Iceland, circa 1012 CE. “Oh, Allison,” you are saying, “What could this possibly have to do with fee setting?” Dear friend, listen and attend. All things old are new again.

Njal, the titular character, does not take up much space in our retelling of his saga: He is, as you might have suspected, burned. Specifically, he is burned to death when his enemy, Flosi, mounts an army of a hundred men and sacks Njal’s farmhouse after a series of increasing back-and-forth slights, in which Njal plays no small part. Njal and most of his family, unfortunately, were unable to escape and are killed in the fire. The only surviving member of the family is Njal’s nephew, Keri, who managed to climb up to the rafters of the house, with both the house and himself on fire, and jump off of the roof. In one of the more impressive and overlooked escapes in history, Keri somehow managed to evade the hundred angry men with swords and axes clambering outside the house while drawing what one could only guess was a huge amount of attention to himself because he was, of course, on fire. He ran full steam (pun intended) to a nearby river and extinguished himself but suffered from serious disfigurement for the rest of his life. Keri clearly had a score to settle, and, after cooling off, he set out to find a posse.

Icelandic leaders at the time were trying hard to encourage aggrieved parties to seek redress in the court system, which was extremely complex and wildly convoluted. Because the internet had not yet been invented, Beloved Reader, the leaders were having trouble getting the word out about this great legal system and the “Law Rock” (literally a rock that you went to for court proceedings) they were hoping people would avail themselves of.

Keri went to all of his extended family members, telling them his harrowing tale and riling them up to seek vengeance on Flosi, when one of Keri’s family members suggested that he take Flosi to court instead. I imagine Keri, looking ever so much like a heavily armed and quickly melting ice-cream cone, stopping in his strangely shaped tracks and scratching his oozing head with a gnarled finger. It was exactly what he would do.

Much like modern American law, there was recognition in Iceland at the time that laypeople should avail themselves of the best attorneys they could find to help them understand the law and advocate on their behalf. Keri found a decent lawyer named Mord, a melodic and enchanting name if ever there was one. Though Mord was trained in the law, he was still fairly young, just like you, Charming Correspondent. Mord served Flosi with notice of the suit, and Flosi went out to find his own advocate.

Now, Dear Friend, is when you start to realize the relevance of the saga to your own sweet self. Flosi found the most famous lawyer in the land, Eyjolf Bolverksson, pronounced exactly like it’s spelled. Eyjolf refused Flosi’s case. It was a sure loser. Flosi had no desire to settle and was pretty clearly in the wrong. No decent attorney, no honest man, would represent such a scoundrel. Flosi, however, managed to persuade Eyjolf to take his case by offering him an ornate and expensive bangle bracelet.

Back in ancient Iceland it was considered bribery, and possibly worse, for a lawyer to accept compensation for representing a client. These were the pre-professional days, when a famous lawyer was other things as well: a leader, a farmer, a raider, a soldier—and made his living with the work of his hands and the sweat of his brow, not from taking cases in which he did not believe. And, what’s more, one didn’t have the shocking burden of student loans to pay off because law school back then was way, way cheaper and still is, from what I hear, in places that are not embroiled in the later stages of capitalism. Fortunately for many of our clients, times have changed, and legal ethics no longer require representation of a client to include personal endorsement of his or her actions.

I must be honest: My disdain for fee setting is part of the many and varied reasons why I left private practice (hopefully forever) many years ago. Your darling Allison could not stand to have a person in her modest office in dire need of services with no bracelets to give her and turn that person away to face the onslaught of the state alone. But you are not me, and I hope that you will find a happy medium in your fee setting, where you let your conscience and your needs both guide you.

Part of the soft-skills training we do not receive in law school has to do with silent and adept observation of others. We observe a witness’s credibility when we prepare him for trial, we observe the demeanor of the judge when we go to hearings to determine if she’s buying what we’re selling and whether to change course in our argument, we observe our opposing counsel’s speech and fear and confidence in evaluating how to proceed with our negotiations, and we ought to observe our client when he walks in the door when we are setting fees as well. Did your client walk in on fire, so to speak?

Once, an older lawyer called me into his office. “I am going to refer you a case,” he said, “and you are going to charge the client $XX,000.”

I balked. “That’s ridiculous. I can maybe quote him half that. I’m not the kind of lawyer people’s grandmothers have to take out second mortgages for.”

The other lawyer brushed aside my do-goodish bravado. He broke down the hours I would likely spend on this case, talking me through my office expenses and likely investigative fees. Suddenly the huge fee seemed reasonable. Slight, even. “No matter what, his grandmother is going to take out a mortgage and hire a lawyer. It can be you or someone else. At least you know that if you take it, you are going to do good work.” I took the case. It was a reasonable fee.

Perhaps there are cases we want to take for low rates—cases in which we truly believe that the client is in need and occupies that horrible gap of services for people of modest means who do not qualify for a court-appointed attorney but who simply cannot afford the going rates of most private practitioners. Long before she was a lawyer, your darling Allison was a (superlative) late-night diner waitress. Prizing $2,000 out of the chipping glass jar where she stored her sweaty cash would have been all but impossible back in those days.

In order to take “low-bono” cases like this and still pay your bills, it’s OK to charge people who can afford services a reasonable rate for what you are doing for them. Check out their car, their watch, their manicure when you are about to quote a fee. When you do your initial consult with them, find out some information about them first. Collecting information for potential representation and determining a fee they will likely be able to pay require many of the same questions. “Are you employed? Where? For how long? Do you own a home? Do you have any child support obligations?”

Speak firmly and don’t make the fee sound like a question. Confidence is key. Watch their reaction. “First-offense DWI representation is $X,” you say, plainly, as if it’s not up to you. “Unfortunately, we are not able to take payment plans.” Do not negotiate your fee, justify it, or argue about it. It is what it is. Stand firm.

When you do provide someone with reduced-rate or pro-bono services, you want to be sure that you are doing it because you want to, not because they want you to. Refuse, in general, to take less up front than you are willing to work the entire case for. Under any and all circumstances, you do not want to become a debt collector, so payment plans should only be made for amounts you are willing to write off.

Issue your clients a professional invoice with the full going-rate amount listed on it and then reflect the amount of discount, if any, that you are giving them. This way, they understand what the value of your services actually is and they can feel like they walked out with a good deal on a great attorney rather than low-budget services from a low-budget lawyer.

I will caution you not to do what an acquaintance of your Darling Allison’s did, which was to remind the low-bono client at every possible juncture that he had not, in fact, paid the full fee, and therefore was less important and entitled to less attention than the lawyer’s other more important clients who paid the full rate. Needless to say this charmless tactic was not appreciated by the client, who had paid what he felt was a significant amount of money to this young lawyer, and the lawyer ended up with an unhappy client who didn’t respect him and a State Bar grievance on top of it all. If you are doing this work because you want to help someone and not out of a financial interest, for the love of all things that are good in this world, shut up about the favor you’re doing the client and do your job honestly and humbly, to the same standard you would have done it for all of Flosi’s gold.

Things didn’t work out so well for our friend and fellow advocate, Eyjolf Bolverksson. Though Mord was the less-experienced attorney and represented the case without compensation, his pure heart won out, as is usually the case in sagas, if not in real life. Eyjolf and Mord started arguing about how many jurors should be excused for cause, and eventually, Mord argued that six of the numerous judges, also, should be excused. Eyjolf laughed. His years of experience and superior knowledge of the law were apparent. No! It was actually TWELVE judges who should be excused, and Mord’s miscalculation meant that, for reasons far too complicated for anyone other than the brilliant Eyjolf to understand, Mord and his client must all be EXECUTED at once! Of course, this haughty announcement was met with alacrity on the part of Mord, Keri, and their crew, and the whole thing turned into Melee at Law Rock (feel free to use that as an awesome band name, Dear Reader, and never say your Darling Allison didn’t do anything for you).

During the ensuing battle, one of Keri’s relatives saw Eyjolf trying to slink, dishonorably, away from the battlefield and shouted to Keri, “Reward him for his bracelet!” Encouraged by the cry, Keri expertly speared Eyjolf in the bejeweled wrist, pinning him to the ground and effectively ending his practice of law.

The moral of the story, FSA, is that no fee is worth your life, or, perhaps more importantly, your bar card, and that other people know what you are charging, even if you think it’s a secret. Be generous in giving refunds and hesitant in accepting gifts, and be sure to thank one-eyed Odin and your lucky stars that the penalty for miscalculating a recusal isn’t the same as it used to be.

In Solidarity,

Allison

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ALLISON JACKSON MATHIS is a criminal defense attorney. She currently works as a Tribal Advocate for the Swinomish Tribal Community in LaConner, Washington, where she lives with her wonderful husband, Mike, and their daughter, Julia, who is named after Julius Caesar. She has previously practiced law in Texas, New Mexico, and the Republic of Palau. If you find yourself puzzling over a practice issue but have no quill and parchment with which to write her, you can submit your questions to: [email protected].