More on who is paying the fee

Almost always, I trust the judgment of real trial lawyers, especially real criminal defense lawyers. After you have been knocked around in a courtroom enough times representing people who are facing huge human consequences, you develop strong ideas about your role, the role of the prosecutor and the role of the judge. Thus, when I wrote the post yesterday about whether I ought to inquire about who is paying the fee in each case where a third-party foots the bill, I hoped I would generate a response or two from experienced lawyers. I asked, and I received.

Read Scott’s post at Simple Justice entitled Need To Know Basis Only. You will get the perspective of someone from the big, big city who handles big, big criminal cases. After presenting a fascinating discussion of the background of the government’s aggressive approach to fees together with the significance of the Guidelines, SHG concludes:

If there is a firm basis, susceptible to articulation and scrutiny, to justify the court’s involvement, that’s one thing. The court is not merely a neutral, but the ultimate guardian of the defendant’s constitutional rights, including his 6th Amendment right to conflict-free counsel. But protection of one prong of a right can’t come at the expense of another.

So the rule would be to stay the hell out of the matter until there is a damn good reason to get involved. It would cause far more harm than good. The relationship between lawyer and client is none of the court’s business unless there is a need to know.

More locally, my bald brother at the bar, Korey, a young man for whom I have enormous respect, also offers a comment worth reading. His perspective is more local, more rural, and very practical but speaks to this issue with years of experience representing little people in the unbelievably violent world of the drug trade that has metastasized in Nebraska.  Korey writes:

Let sleeping dogs lie.

It’s a valid concern, and one reason a lawyer needs to get his fee up front, it lessens the angst when your client throws the payer under the bus.

The high majority of these people are well versed in “the game” especially those detained. It would be hard to imagine a client who was ignorant of the incentive to cooperate in this District.

My biggest concern is i’m hired by 3rd party, client proffers against 3rd party as kingpin. Do the feds go after my fee? Am I in trouble for accepting a fee which was drug proceeds? How much vetting must I do about my fee?

If a defendant answered “i’m not going to proffer against him because he was nice and paid my lawyer fee” is that a problem? On a couple pleas the AUSA announced they had offered to allow my client to cooperate but he rejected that. Which the Magistrate inquired if that were true. That might alleviate the concern somewhat? On more than a few occasions the decision to plea without cooperating was based the client fearing retribution on the defendant and his family.

Been in that situation, and felt minor pressure. In the end the losing my law license, probably committing a crime of helping cover the conspiracy, as well whatever moral compass i have – directed my advice. But again – money up front with a non-refundable provision makes it easier on my moral compass to ignore subtle pressures.

Scott and Korey’s thoughts provide good insights from lawyers who have paid their dues while receiving their fees as retained counsel.* I thank them.


*I wonder whether Federal Public Defenders or CJA counsel think there is enough of a problem with third parties paying defense fees to retained counsel in criminal cases that I ought to adopt a fee-paying disclosure rule or something similar.

6 responses

  1. As a former bail bondsman i faced similar situations. The main guy paid the bond of the smaller guy and the main guy guaranteed the smaller guys future appearance. Sometimes, the main guy used this responsibility to “control” the smaller guy. If the small guy didnt do what he was told the main guy would then turn to the bail bondsman and ask that the smaller guy be re-arrested because the main guy could no longer control the smaller guy. This is the real politik of how it worked. It wasnt a pleasant experience to have to do the main guy’s dirty work under the guise of indemnitor’s rights. There is no way on god’s green earth that a person’s theoretical constitutional rights will ever prevail in the face of the pressure of how these situations play out.

  2. Keep that NY Curmudgeon close.

    Unparalleled he is with a consistency that confronts the boiling of oceans if necessary.

    I think he is board,

    Fuck with him more often.

  3. John,

    I will.

    And, it is a ride isn’t it. The question is whether you want to ride a mule or something slightly more fun with the insanely small possibility that your stead might just turn out to be Shadowfax.

    All the best.


  4. I agree with the defense attorneys who responded. Courts should stay out of these areas unless there arises a serious conflict where the person being indemnified wasn’t advised that the attorney was representing his or her interest and not the payor. In any event, in the age of sequestration I would think the court would be happy to have anyone footing the bill other than U.S. Treasury

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