The Pandemic’s Impact On Your Criminal Defense Case: Part 2
December 9, 2020
“When can I meet you in person?”
Every criminal defense lawyer struggles with this question for many reasons. First, we have always done in-person consultations. Personally, I never did a telephone consultation until after Hurricane Ivan in 2004.
Second, people want attention and empathy when discussing a legal matter of great personal importance.
Third, there is the matter of confidentiality. An attorney-client meeting needs to be in a safe and secure communications environment. A jail Securus tablet meeting does not meet these needs as long as facilities fail to provide a private and quiet setting. Then there is the issue of confidentiality – Securus has already been sued over this.
Finally, my answer is not popular: in-person consultations will resume when there is both a vaccine and a cure. Further, absent a direct order to physically appear in court, I won’t.
On November 3, 2020, my client had the good fortune to have his case discharged in a North Florida courtroom. This was my first in-person court appearance since the start of the pandemic in March and resulted in a fourteen-day quarantine because I spoke with a lawyer who came down with the virus the next day.
Fortunately, I tested negative and did not become ill. But others weren’t so lucky. The jail nurse in Marathon died the very same day the idiot Sheriff declared no one could wear a mask at the Sheriff’s office. Then there is the community control officer Fort Lauderdale, the defense lawyer in Miami, and numerous inmates across the state. They died while countless others became very ill, often from someone showing no symptoms.
I get that some don’t: in life, you either get it or you don’t. If you don’t think the virus is a serious health threat, then you don’t get it and will probably become a difficult client since you already deny science and therefore logic. As my good friend and practice partner for over twenty-five years puts it, he’s a “covid realist.”
So am I: in-person office and jail visits will resume when there is a vaccine and a cure. Yes, there are serious problems with litigating criminal cases during a pandemic but in-person visits are not the answer to any of them. In-person pandemic visitation has the capability to sicken and kill and therefore constitutes culpable negligence in my view, a major felony.
Payment plans in criminal defense cases versus limited representation
Long before the pandemic, criminal defense lawyers have been asked to provide interest-free loans for legal fees. Questions such as “how much do you charge for X?”, “how much is your retainer?” and “do you take payments?” were common long before the pandemic.
First and foremost, criminal defense lawyers hate payment plans for two main reasons:
If the client stops paying, the defense lawyer is usually stuck working for free because the judge will not let the attorney off of the case.
Almost no one pays on time or in full.
From your perspective, the odds are pretty good you don’t have a money tree shedding cash in your backyard. You need legal help for yourself or someone you love and it needs to be affordable. You don’t want to use the Public Defender because it’s obvious they have been deliberately underfunded and have too many cases and not enough time. During this pandemic, they are backed up like never before.
Bluntly stated, every criminal defense lawyer I know wants clients who pay in full, upfront. When people pay upfront, you never ask the legal assistants if the client is current with their payments before booking a consultation. You don’t have extra time taking consultations about why their payment is late and when they can pay it. There’s a lot more, but the point is already clear: payment plan cases are a hassle for a defense law firm.
Enter Limited Services representation.
Limited services representation is widely used in Florida family law cases. The lawyer provides and is liable strictly for the services purchased by the client. The lawyer is not obligated to perform additional services without payment.
In contrast, criminal cases have traditionally been “all in”. For example, in the federal criminal court system, it is rare to find a fee under $10,000.00 simply because the lawyer is liable for pretrial legal services, trial and appeal without additional payment if the client runs out of money. This is also why you will never find limited services agreements in federal criminal cases.
In state criminal cases, limited service agreements are just beginning to come into being. For decades, defense lawyers separated trial and pretrial legal fees. Now, the pretrial phase of some cases can be broken down into individual pieces.
Note the phrase in some cases. In the next segment, let’s start with some examples to give you guidance.