How to Pay for a White Collar Criminal Defense Lawyer – Part I

July 1, 2015

businessman hiding face behind sign dollar symbolThere’s no question that hiring a lawyer—any lawyer—is expensive. When you are being investigated by the government or have been indicted, you need a lawyer more than ever. The stakes are high. Losing the case isn’t like losing a civil lawsuit—a loss means time in prison, not paying some money.

I frequently get calls from people who need a lawyer in a white-collar case, but have no idea how much it will cost or how to pay for one. This two-part post is my attempt to answer some of those questions.

Part I of this post will describe the two basic options—asking the court to appoint a (free) lawyer for your case and hiring a private lawyer. Part II will talk about the nuts and bolts of selecting and paying for a private lawyer.

Option 1: Have a Lawyer Appointed to Your Case by the Court

The only good news about being indicted is that the court is obligated to appoint you a lawyer if you cannot afford one. This usually happens through the local public defender’s office or the court may appoint (and pay for) a private lawyer to represent you.

Gideon v. Wainright is the key Supreme Court case requiring the appointment of counsel in state cases. Federal Rule of Criminal Procedure 44 codifies the rule on the federal side.

(a) Right to Appointed Counsel. A defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.

Public defenders work for the public defender’s office, and are not private lawyers. They have handled many criminal cases in your jurisdiction, and their offices are filled with other experienced public defenders. Where I practice—DC, Maryland and the Eastern District of Virginia—the public defenders are, hands down, some of the best criminal defense lawyers around.

The public defender’s offices can’t represent everyone, though. There may be conflicts in multiple defendant cases and there usually aren’t enough public defenders to represent all of the eligible defendants in a jurisdiction.

So, the courts have set up a process to appoint private lawyers to represent defendants. Private appointed lawyers are paid through the Criminal Justice Act. The court will maintain a panel of CJA-approved lawyers and then appoint one to your case.

There is a set hourly rate for CJA lawyers (in D.C., for example, it is $90 an hour) and there is a default maximum amount per misdemeanor or felony case. The lawyer can go above that maximum amount with the court’s permission.

To qualify for a court-appointed lawyer, you must meet certain financial requirements. It is kind of like applying for college financial aid: making a lot of money is a negative.

In federal court, you need to fill out a financial affidavit form and submit it to the court. This form allows the court to determine your eligibility for a public defender or CJA-appointed counsel. You can send to the court clerk’s office a simple written request that the court appoint you a lawyer.

A person is “financially unable to obtain counsel” within the meaning of 18 U.S.C. § 3006A(b) if the person’s net financial resources and income are insufficient to obtain qualified counsel. The court will consider

  1. the cost of providing the person and his dependents with the necessities of life, and
  2. the cost of the defendant’s bail bond if financial conditions are imposed.

The major upside to using a court-appointed lawyer is that you don’t have to pay for her. Plus, these lawyers often have considerable criminal defense experience and regularly appear in the courts.

The downside is that you do not have any choice in picking your lawyer. The court doesn’t let you interview prospective public defenders to find a good fit. So you may be stuck with a lawyer who you do not particularly like. Public defenders are also incredibly busy and it can be impossible for them to devote the amount of time to your case that you would prefer, since they are juggling so many clients.

In my view, you can get an incredible public defender/CJA lawyer, just the same as you can get incredible private lawyer. Equally so, you may end up with a terrible appointed lawyer or private lawyer. But you can fire the private lawyer and hire another one. You can’t do that with an appointed lawyer.

There is no right to counsel until you are indicted. This makes a difference in a white collar case because the government may investigate you for months or even years before you are indicted. The pre-indictment stage is critical to your defense; in rare cases, your lawyer can convince the government not to indict you or to indict you on lesser charges.

So, if you have a choice, you want to retain counsel during the investigation stage and not wait until you are indicted to have one appointed to your case.

Option #2: Find a Private, White Collar Lawyer

The other option is to find and hire a private lawyer.

The key to finding a good white collar lawyer is to ask around—ask friends or acquaintances who are lawyers for names of white collar lawyers. I get plenty of referrals where I’m the third or fourth lawyer in the chain. Here’s an example:

Joe the client finds out that he’s being investigated by the government. He asks his golfing friend Bill for the name of a good lawyer. Bill sends him to Bill’s lawyer, Jane, who handles real estate transactions. Jane sends Joe to Tim who is a criminal lawyer who handles all DUIs. Tim, however, knows a couple of good white collar lawyers and passes on those names to Joe. Joe calls those white collar lawyers to find the right fit.

Pro tip: When you call a lawyer that you may want to retain, explain at the beginning (or in your message) the name or names of who referred you. It’s reassuring when I get a cold call from a potential client to know that he came to me through someone I know. You’ll get a quicker call back that way.

If you can’t find a white collar lawyer by asking around, check out the website for the National Association of Criminal Defense Lawyers, which has a “find a lawyer” page with links to the attorneys’ websites.  You can call your local bar association to ask for a referral. You can call the local public defender’s office which will likely have a list of lawyers to whom it refers cases.

What Kinds of Private White Collar Lawyers Are Out There?

There are two basic categories of white collar lawyers.

  1. Big firms. On average, these are the most expensive lawyers. Depending on where you live, hourly rates can range from $300 to $1000.

You can be assured that the firm will have plenty of resources to handle your case from start to finish. Your case will be staffed with partners, associates, paralegals and other administrative support staff.

I spent 10 years at a big firm and you can find excellent, top-notch lawyers there. (If you can afford a big firm, you probably already know who to call and how to pay. You can stop reading this post.)

Many big firm white collar lawyers are former prosecutors. This can be helpful because they know how the system works from the “other side.” Just be sure your former-prosecutor-turned-defense-lawyer is not the type to push you to enter into a plea deal. For most prosecutors, that’s what they’ve seen in the past.

  1. Small firms and solo lawyers. These lawyers are, generally, less expensive than their big firm counterparts, but have just as much experience. It’s impossible to estimate, but I’d guess that small firm/solo lawyers in Washington, DC are around 25-45% less expensive than a big firm lawyer.

If you work with a small firm or solo, you likely will have fewer people working on your case, which means lower bills overall. But even though the hourly rate may be lower, the upfront retainer may still be substantial. (More about retainers in Part II.)

Lawyers at small firms may be former prosecutors or public defenders. Some (like me) participate on the local CJA panel as well as maintain a private practice.

In the Next Episode…

In Part II of this post, I’ll talk about what to ask during the initial interview with a potential lawyer, how much a white collar case costs and how to pay for a white collar lawyer. Stay tuned.

Published by Kropf Moseley

Whether you need to take a case to trial, negotiate a resolution without ever setting foot in the courtroom, or navigate a complex public relations problem, we can help. View all posts by Kropf Moseley.