On the Benefits of a Flat Fee Agreement

by Jamison Koehler on March 5, 2016

BaltimoreGraffiti.3Criminal defense attorneys often use flat fees; that is, we charge a set sum to cover the entire course of a representation. This includes arraignment, negotiations with the prosecutor, any legal research that needs to be conducted, preliminary hearings and status hearings, trial, and, if necessary, sentencing. As Mark Bennett has put it, the flat fee is at once the minimum fee for a representation as well as the maximum: “If we go to court the first time and, for whatever reason, the case is dismissed, I don’t owe you any money back. On the other hand, if we spend a year litigating and then wind up in a two-week trial, you don’t owe me any more money.”

The flat fee arrangement, from my standpoint, is a win-win for both parties. From the lawyer’s perspective, you have the satisfaction while working on a case that you are being diligent on behalf of the client, not simply running up the tab. You do not need to track your time. You do not need to second-guess yourself on whether or not particular work will be a good use of the client’s money. Financial considerations do not skew other important decisions, such as whether or not to take a particular case to trial. The client is protected if the case turns out to be long and complicated. And if the case is disposed of quickly (the first goal in any criminal case), you both benefit – the client because the case is over and you because, having earned your fee on this case, you are free to close out the file and move onto other work.

I charge what I believe is a fair flat fee. After 7 years of private practice, I have a pretty good idea what work will be involved with any particular case. This protects me. It also makes sure that I am not overcharging a client. If it is a first-time offender in a misdemeanor case, for example, the client is likely to be offered some type of diversion program. I occasionally negotiate my fee down a little bit, depending on the client’s circumstances and the facts of the case, but I agree with those who warn that the clients who focus too much on the fee often turn out to be problematic.

I have also had people offer to pay me more so that I will work extra hard. The outcome is really important to me, they say, and I don’t want you to spare any expense. I can only laugh when this happens. Thank you, I tell them, but once I enter my appearance in a case, you get the same level of representation no matter how much you have paid me. This would be my ethical and professional responsibility even if you had paid me nothing at all.

One Comment on “On the Benefits of a Flat Fee Agreement

  1. The problem with Bennett’s theory is that bar regulators don’t share it. Non-refundable retainers are generally prohibited. Lawyers are entitled to no more than “reasonable fees.” Thus, the one-court appearance problem: was it really worth all that dough? A lawyer who refuses a refund after a brief period of representation is asking for discipline.
    What’s more, there is a move afoot among regulators to require that fees be held in trust until earned. When is a flat fee retainer earned?

    The simple truth is that private practitioners subsidize the work of those who can’t afford us with the fees of those who can. Given the constructive regulation of the market by the reasonable fee requirement, that’s problematic.

    I don’t have answers to these questions. I simply note them.

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