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Understanding Fee Structures In Criminal Defense And Post-Conviction Cases

One of the most common questions we’re asked is how our fees work. While there are many different ways for attorneys to take a fee, most will tell you in advance what they believe your case should cost and what resources are necessary to win your case at trial. They should, but are not required to, memorialize your fee agreement with them in writing.

Our attorney fees can be broken down into three basic types: retainers, fees to be placed in trust accounts, and flat fees.

At Longman Jakuback, we usually structure our fees in a mixed retainer/trust agreement. We start with what we call a minimum retainer, paid to us for what we believe will be the amount of time and resources that will be required to win your case. In order to get this number, we multiply our hourly rate by the amount of time we believe it will be necessary to dedicate to your case, and then add in investigative expenses, the costs of experts, and any other costs that we believe may arise. This amount is due upfront.

We then credit our hourly rate — and any services needed by experts, specialists, and others — against this retainer amount until it is exhausted. At that point, if your matter has not been resolved, we ask that you make periodic deposits into our trust account in order for us to continue litigating your case. Any amount left in our trust account at the end of the case is then returned to the client. This is typically how we structure our contracts and fees.

Types Of Fees


Retainers are fees paid for the lawyer’s time, typically in advance of the matter itself. By paying the lawyer in advance, the client ensures that the lawyer will work on the client’s case. Typically, in order to determine the appropriate retainer fee for a client, the attorney will multiply his hourly rate by the amount of time he believes will be necessary for him to complete the case (or any legal matter of the client). At the moment it is paid, a retainer fee belongs to the attorney.

Fees In Trust Accounts

When a fee is placed into a trust account, the money does not belong to the attorney. The money is placed into what is called an escrow account that is owned by the lawyer or firm. The items inside the account are owned by the clients. In the case of attorneys and their clients, this means that although the lawyer owns the trust account, the money inside the account is still owned by the client.

Once money is deposited into the attorney’s trust account, the attorney can then earn the money and will submit to the client regular accounting of work done on the case as the money is earned. The attorney then bills the money from his escrow account to his operating account, thus transferring ownership of the money from the client to the lawyer and “earning” the funds. Occasionally, the client may be required to deposit money into the trust account if the client’s trust balance falls below a pre-agreed “evergreen” amount.

At the end of the case, any amount left in the trust account is returned to the client.

Flat Fees

Many attorneys charge a flat fee for the case. There are many reasons for this. Flat fees let both parties decide, at the beginning of a case, on one price for the entire representation. Once this amount is agreed upon and paid, the parties never have to talk money again, and both sides know exactly what they are getting. A flat fee belongs to the attorney as soon as it is paid.

At Longman Jakuback, we generally do not structure our fee agreements as flat fees. There are multiple reasons for this, but the biggest one is that flat fees for quality representation tend to be extremely high.

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