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.

Advise me please: Should a federal trial judge demand to know who is paying the attorney fees?

I have been concerned for a long time about situations where someone or something is paying the attorney fees of a party to a civil or criminal case but the judge doesn’t know it. For present purposes, I am not concerned with (1) standard insurance defense relationships that are set out in detail in insurance policies or (2) criminal cases where a lawyer is appointed by the court and the fees are being paid by the government.

Two examples (none of which are drawn from a particular case) are illustrative:

1.  On the civil side, a corporation employs a highly regarded mid-level sales manager. The manager is alleged to have sexually assaulted an employee of a catering company at a private party.  The corporation has nothing to do with the party. The party was held across the river in another state.  A civil suit is brought by the alleged victim against the mid-level manager in federal court on the basis of diversity. The mid-level manager has no insurance that would cover the claim, and turns to his employer for help.  Perhaps because the fellow is both well-liked and a high producer, the outfit tells the employee not to worry about attorney fees. The company’s outside private counsel enters an appearance for the employee to defend the federal civil suit.

2. On the criminal side, a highway patrol trooper stops a truck supposedly hauling cargo pallets of fertilizer. Arvo, the drug dog, hits on the truck, and way back among the 100 or so pallets of fertilizer is another pallet that looks exactly the same.  However, that pallet contains 50 kilos of cocaine. The driver is charged with a federal drug crime. Perhaps for the love of his nephew who he raised as a young boy, the driver’s uncle engages a local criminal defense lawyer, and wires the lawyer a large retainer with a promise to pay more if needed. The criminal defense lawyer speaks with the driver, tells the defendant of the uncle’s help and then enters her appearance for the defendant in the federal criminal case.

For present purposes, and short of disclosure to the court, I don’t care about what the lawyer must do to comply with ethics rules. Nor do I care about what steps the lawyer takes to formalize things with the client and the party who will pay the fee prior to entering an appearance. Additionally, I am not now concerned with multi-party representation issues and requirements under Federal Rule of Criminal Procedure 44(c).

What I do want to know is this: “As a regular practice (set forth in a local rule or otherwise), should a federal trial judge routinely require that the facts and circumstances of all non-party fee paying arrangements be disclosed to the judge in situations similar to the ones described above?”*  

Truly, I don’t know the answer to my question.  So, I look forward to your help.


*Feel free to take a shot at proposing a local rule.
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