Defending People

If you take retained criminal cases, you need a good contract. You don’t have to have a written contract with the client in every case, but there will be cases in which you will at some point wind up saying either “I wish I had gotten a contract signed” or “I’m damn glad I have a contract signed.”

Personal injury lawyers use contracts to bind their clients to them. They attach great significance to the “signing up” of a new client. In a criminal case, a signed contract without payment up front is very rarely worth anything. In a criminal case, it is the fee that binds the client to the lawyer. The client is free at any time to change criminal defense lawyers if he wants to and can afford to. In a criminal case, a good contract makes clear to whoever is paying what he’s to do and what the client can expect to get in exchange.

I offer for your consideration version 1 of the open-source criminal defense contract. Use it if you like; if you find a way to improve on it, please let me know. If I am convinced that the improvements are improvements, I’ll incorporate them into future versions for distribution.

Here is the contract in .doc format;
Here is the contract in .pdf format; and
Here is a .zip file with the contract in both formats.

Some random notes:

• The contract is for a case with a third-party payor — a common situation in hired criminal defense practice. Simple modifications could be made for a paying client, or for multiple third-party guarantors.

• It is sometimes the case that a client is satisfied with his representation, but the payor complains — for example, when the client hasn’t told the payor the truth about what happened. I can’t reveal privileged information to the payor, so my intent is to forestall her complaints by making it clear that I have no duty to her.
• The contract provides for the entire fee not to be paid up front — a rare situation in my practice, but I know that others do it more than I do.
• The contract expressly provides for a “contract fee”, earned upon payment. It is not couched as a “nonrefundable” fee. Different jurisdictions have different rules on the requirements of “flat fees” or “general retainers” or “nonrefundable fees” (see this Michigan Attorney Discipline Board opinion [hat tip to Carolyn Elefant at MyShingle.com] — and the cases cited therein), so consult your local disciplinary rules (and please let me know what you think other states would require).
• There are lines at the bottom of each page of the contract for the payor and the client to initial.
• The contract includes a waiver of the Texas attorney-client privilege as necessary to carry out the representation effectively. I realized that this was necessary in Texas when I carefully reviewed the law of privilege. It may not be necessary in other jurisdictions, but I don’t see any harm in including it.
• Since I no longer represent snitches, I would — in a case in which snitching might appear desirable to the accused — include a “no snitches” clause.