Many people (particularly those who intend to plead guilty) are reluctant to spend money hiring an attorney since it would cost nothing simply to walk into court at arraignment, admit guilt, and accept a punishment that may be no worse that what an attorney could negotiate on their behalf. This is understandable. In some cases, hiring an attorney will cost you money and achieve no real benefit in terms of the ultimate result. The problem, however, is that it takes an experienced attorney to know whether you are guilty of what the DA has charged (as opposed to a lesser offense), whether there is some defense you haven't considered, and whether there are any alternatives to the deal offered by the DA. Additionally, an attorney can advise you on the consequences of a conviction, whether that conviction can be expunged in the future, and the benefits and limitations of expungement.
Should I hire ANY private attorney before I accept a public defender?
If you lack the resources to hire an attorney, and are charged with a misdemeanor or a felony, you are entitled to have a public defender represent you at little to no cost. The judge will appoint a public defender upon your request at arraignment (i.e., your first court appearance) if you are entitled to it.
Many potential clients have an extremely negative perception of public defenders and act as though they'd rather hire ANY private attorney before accepting a free one. I cannot stress enough that this would be a mistake. I have observed the work of several hundred criminal defense attorneys - private and appointed - over nearly 15 years practicing law in Orange County. Overwhelmingly, the most incompetent attorneys I've seen are private counsel, who usually (but not always) charge very low fees. A public defender who represented his or her clients so poorly would quickly come to the attention of management. Incompetent private attorneys lack this oversight.
Why should I pay for an attorney if I'm entitled to a public defender at little or no cost?
As explained above, accepting the appointment of a public defender is usually a much wiser choice than retaining an unskilled (and often low-cost) private attorney. But you should also know the drawbacks of representation by a public defender. Their caseloads are often far too high to give your case the attention it deserves. Also, it is common for public defenders to switch assignments so frequently that you have a new attorney each time you go to court. Consequently, it is often difficult for a public defender client to find someone who takes "ownership" of the case and gives direct answers about its progress. Additionally, even if you dislike your public defender and have legitimate complaints about the work he or she is doing (or not doing) on your behalf, you have no right to fire that person and have a new public defender assigned. A judge's approval is typically required, and it is exceptionally rare for judges to grant this request.
How can I learn what it would cost to hire a criminal defense attorney?
Shop around. Speak with at least two or three defense attorneys. Unlike most attorneys who bill by the hour, criminal defense lawyers typically charge flat fees. To determine the fee that would be charged in your case, an attorney will likely want to discuss the case at length with you to determine its complexity. For example, it makes little sense for an attorney to say that the fee for every first-time DUI is the same. Some clients with a high blood-alcohol level might simply want an attorney to conduct a basic review of the case to determine whether to fight it, and then (if a decision is made to plead guilty) appear in court to plead guilty on behalf of the client (who may never even be required to miss work to appear in court). This involves considerably less time for the attorney than a DUI case where extensive motions need to be filed, and extensive trial preparation must be conducted.
What are the benefits of a flat fee?
The benefit of a flat fee is that clients know, at the outset, how much he or she must pay an attorney. Anyone who has ever hired an attorney at an hourly rate knows that it can be scary to await a huge bill every month, particularly since it is almost impossible to know for certain whether the attorney is acting ethically - billing for necessary services that were actually performed - or billing more time than what was actually devoted to a case and/or billing for services that were never really essential to the case.
How do I know whether a flat fee will really cover everything?
California law requires attorney fee agreements to be in writing, signed by both the attorney and client, if it is "reasonably foreseeable" that fees and costs will exceed $1,000. Any exceptions to a flat fee must be in the contract. If not, the attorney - rather than the client - should bear the consequences.
Since only a small percentage of cases actually go to trial (the majority are resolved through a plea or dismissal), most attorneys will charge an additional fee to conduct a jury trial.
Also, beware that many attorneys charge an initial flat rate in felony cases that only covers representation through the preliminary hearing. For many reasons, it often makes sense to structure a fee agreement this way. But it is critical to understand that the fee you can easily double if your case goes beyond preliminary hearing, which they frequently do - even if you ultimately plead guilty.
Finally, it is important to note that attorney fees generally exclude "costs.
What is the difference between an attorney's fee and his or her costs?
Most fee agreements provide that a client must pay "costs" in addition to the attorney's fees. Costs can include additional services like hiring a private investigator to conduct interviews and serve subpoenas. Be sure to ask whether it is likely that you will have to pay for any costs, and what the amount is likely to be.
Do criminal defense attorneys accept payment plans?
It depends on the attorney. A large percentage will ask for payment in full before they will agree to accept your case. While this may seem insulting or even greedy, you should be aware that attorneys who do not do this often find themselves performing work for which they never get paid. An attorney who is unable to protect his or her own interests is far less likely to successfully protect yours.
Additionally, because attorneys who accept payment plan often lose money representing clients who fail to fulfill their obligations, they may need to make up the difference by running a high-volume practice where they cannot devote the time that each client's case deserves.
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