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.