For many people charged with a criminal offence, it is their first time. It is stressful to think about the potential consequences and it is stressful to know what to do or who to hire. First, I would always recommend that you hire a lawyer if you are charged with a criminal offence. As a criminal defence lawyer, it makes sense that I would recommend you hire one, so I may be biased. But you don’t have to listen to me. Whenever people that are very familiar with the justice system like judges, police officers, or corrections officers are charged with a criminal offence, they hire a lawyer. I want to help explain how I think it should work when you hire a criminal lawyer so that you can figure out if the lawyer you meet with is legit or full of it.
What is a retainer
A legit lawyer will explain this in detail
A “retainer” is a word that a lot of new clients have heard before, but almost no one understands exactly what it means or how it works.
In a very basic sense, a retainer is like a pre-pay or a down payment. It is money collected at the beginning of the case to cover the lawyer’s bill at the end of the case. The reason criminal lawyers like this process is because, unfortunately, some clients may not pay an outstanding bill after all the work is done. Even in cases where I was able to get an outstanding result for a client, some still haven’t paid their outstanding bills. By collecting a retainer upfront, it guarantees that the lawyer will get paid for his or her work at the end of the case.
To be more specific, any money that you pay to the lawyer as a retainer does NOT go to the lawyer directly. Instead, it goes into a special type of bank account called a “trust account” and the trust account is handled by the lawyer’s firm. It is called a trust account because you are trusting the money to him or her. Money in a trust account at a law firm is really just like any other bank account that you’d have. It is still your money, but we are holding onto it for you. We cannot lose or spend your money, and the only way the money can leave the trust account is with the client’s permission. After a lawyer completes work on your file, then he or she can prepare a bill for the work completed and the money can then be transferred from the trust account to a pay cheque for the lawyer.
So, it is different than a pre-pay because even if a client pays a retainer on day one, the lawyer you hire does not actually receive any of the money yet (but he or she hasn’t completed any work, so he or she doesn’t really deserve any money yet). Lawyers can only receive money paid as a retainer after they prepare a bill for work completed.
A legit lawyer will explain in detail to new clients what a retainer is so clients actually understand what is going on. I always explain what a retainer is in detail and I often use an analogy at my initial meetings to help clients understand.
How much does it cost
A legit lawyer will tell you exactly
First, you have to know that all lawyers seem to do things a bit differently. The key is to ask a lot of questions so you can understand how the costs and fees actually work.
Some lawyers charge clients using a block fee or a flat fee. This system works like a menu at a restaurant. There are different types of legal work the lawyer can do (such as a bail application, a guilty plea, or a trial) and there are different costs for each of those types of work. It seems that most Winnipeg defence lawyers prefer to use block fees.
Alternatively, lawyers can also use an hourly rate. Lawyers keep track of every minute they spend working on the file including every meeting, phone call, text message, and email. The lawyer prepares a detailed timesheet that documents the work completed and then multiplies it by the hourly rate. The problem with hourly rates is that neither the client or the lawyer knows what the final bill will be, so it can make some clients anxious and the final bill may be a surprise. There isn’t a right or wrong way here - some clients like block fees and some like hourly rates. The key is for you to understand how the lawyer will be charging you at the outset.
A legit lawyer will tell you exactly what the block fees are (or quote you a range) and/or tell you what the hourly rate is. I almost exclusively use block fees because I want my clients to be able to plan and budget for their legal fees. I think that an experienced criminal defence lawyer should be able to estimate how much work a particular case will require and quote an exact block fee for the client. Some lawyers do not tell you what the final costs will be, or they can be vague about the block fee. But, to me, that doesn’t seem like a fair way to treat someone. At a restaurant, you get to see the prices before you order your food, shouldn’t that same idea apply to legal fees? I always tell my clients what the exact block fee will be at our first meeting.
Initial retainer vs. final cost
A legit lawyer will tell you both
An initial retainer is the amount of money the client must pay into the trust account before the lawyer will begin any work.
For some lawyers, they will tell you that they won’t open a file for you or start any work unless you pay an initial retainer first. I think that is a completely reasonable approach as long as the lawyer explained what the block fees are or what the hourly rate is. Many lawyers, myself included, will not start working on a file unless a client has paid an initial retainer or made a first payment on a payment plan. Not all lawyers ask their clients to pay an initial retainer. It is important to discuss with your lawyer if there is an initial retainer amount and then what that amount is.
One problem that can occur is when a lawyer tells you a retainer amount and you assume it is the final cost, but the lawyer meant that it was only the initial retainer. In most cases, the initial retainer is NOT the same as the final cost. This problem is easy to avoid if you can confirm if the amount quoted is an initial retainer or the final cost. Some lawyers may try and lure new clients with a lower retainer amount than other lawyers, but then surprise clients part way through the case with the final costs/fees.
A legit lawyer will tell you what the retainer amount is as well as what the final cost is (either as a block fee or hourly rate). I always tell my clients what the final costs or fees will be at our first meeting. I do not ask my clients to pay an initial retainer. Instead, I provide my clients with the final cost and then I start working on the case after the first payment is complete.
What is a retainer agreement
A legit lawyer will give you one
Lawyers love paperwork, right? Not always, it seems. A retainer agreement is a letter that the lawyer prepares and gives to the client to ensure the client understands how it works to hire the lawyer and what the costs or fees are. In many ways, it is like a contract between the lawyer and the client. The retainer agreement can outline what the retainer amount is, what the block fees are, what the hourly rate is, and how the lawyer charges the client if the legal relationship ends early.
In my experience, a lot of Winnipeg criminal defence lawyers don’t use retainer agreements. It isn’t a requirement from the Law Society of Manitoba, but they do recommend that lawyers put details in writing for clients about costs. Under the commentary section of the Code of Conduct for “Reasonable Fees and Disbursements” it says:
A lawyer should provide to the client in writing, before or within a reasonable time after commencing a representation, as much information regarding fees and disbursements, and interest, as is reasonable and practical in the circumstances, including the basis on which fees will be determined.
I think a legit lawyer should provide you with a retainer agreement in order to make sure the you understand everything properly and to help avoid misunderstandings. No one has a perfect memory, so the retainer agreement makes sure what was discussed at the meeting is written down and agreed upon by everyone. I think a retainer agreement helps my clients clearly understand how the lawyer-client relationship works and what the costs and fees are, so I always prepare retainer agreements at the end of our first meeting so they can review it in detail before they make any decisions.
Are there extra costs
A legit lawyer will tell you
Part of the discussion about costs and fees should include details about extras. Are taxes extra? Is travel time and mileage extra? Are there extra costs for disbursements like photocopies or postage? Some firms have a “file disbursement fee” that is designed to cover all the costs of photocopies and postage, but you should still make sure you know what the file disbursement fee is. These are questions that should be answered at the first meeting.
The Code of Conduct from the Law Society says:
A lawyer must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has been disclosed in a timely fashion.
In some cases, lawyers decide to charge clients an additional amount for exceptional results. Basically, if the lawyer does a great job and gets a great result for the client, the lawyer can charge a “win bonus.” This is not against the Code of Conduct, but I think a lawyer would have to tell a client they may decide to charge a win bonus in the retainer agreement.
A legit lawyer will provide you all the details about extra costs and include them in the retainer agreement. I always tell my clients all the details about disbursements and travel time and mileage costs. I include that information in the retainer agreement that I give to my clients at the end of the first meeting. Finally, I have never charged a client a win bonus and I don’t plan on doing it. I think I should be motivated to work hard for you because you hired me and you are paying me to do a job. I do not think I should need “extra motivation” to try and get you a great result.
Can I get a receipt
A legit lawyer will provide receipts
The Law Society has very strict rules about how lawyers accept money from clients. For cash payments, a lawyer must always issue you a receipt immediately. It is best to count out cash together and then both you and the lawyer should sign the receipt to confirm the amount, then the lawyer provides you with a copy of the receipt. For cheques or money orders, a receipt isn’t necessary because the amount being paid is clearly written, but you can always request a receipt if you would like one. For credit/debit payments, you should be able to receive a copy of the payment slip from the debit/credit machine for your records and you could also request a receipt from the firm if you would like one.
A legit lawyer will always issue you a receipt immediately for cash payments and will offer to issue you a receipt for other payment types. At our firm, we always issue receipts for cash payments as well as whenever a client requests one.
Non-refundable retainer
A legit lawyer won’t say this
This one is really easy to explain. All lawyer fees have to be fair and reasonable - the Law Society says so. So, if you hire a lawyer today and pay him or her a $1,000 retainer, and then tomorrow you change your mind, the lawyer doesn’t get to automatically keep that money. Even if the lawyer told you the retainer was non-refundable. Even if the receipt said the payment was non-refundable (this is something I’ve actually seen on the receipt for a Winnipeg criminal defence firm). Instead, the lawyer would have to justify what legal work was completed, provide a bill for that work, and provide a refund if there was any money remaining in the trust account.
A legit lawyer would never tell you that a retainer is non-refundable because that would be intentionally misleading to you. Frankly, if the term non-refundable retainer came up at some point during a meeting with a Winnipeg criminal defence lawyer, I would walk out of that meeting. I always explain how costs and fees work with my clients because I want them to actually understand so they can make informed decisions. I have never told a client that a retainer is non-refundable and the receipts from my firm definitely do not say that either.
Legal Aid Plus Cash
A legit lawyer won’t double dip
A lawyer is allowed to collect the Legal Aid application fee of $25 to forward to Legal Aid on your behalf. If your application with Legal Aid Manitoba is approved, it means that Legal Aid will pay the lawyer for the legal work that needs to be completed on the case. You do not need to pay the lawyer anything more or extra to work on the case. Sometimes, people think that if they can pay the lawyer something extra, that they will get better service from the lawyer. However, lawyers are not allowed to accept payments for legal work that is covered by Legal Aid and it would be fraudulent and unethical for them to do so. There is an exception where you can pay a lawyer privately for parts of the case that Legal Aid refuses to pay for. For example, if Legal Aid does not authorize travel time or mileage for a file, the lawyer may bill Legal Aid for the legal work and then bill the client privately for travel time and mileage (assuming the client has agreed to this in advance).
A legit lawyer will not ask for more money on a case where Legal Aid is already approved. If the lawyer is not prepared to work for what Legal Aid pays, then the lawyer should not have agreed to take the case on a Legal Aid basis. I never double dip or suggest that I’ll work harder for clients on Legal Aid if they pay me something extra.
False or mis-leading ads
A legit lawyer won’t break the rules
The Manitoba Law Society’s Code of Conduct has specific rules about how lawyers in Manitoba are allowed to advertise. Basically, advertisements have to be truthful, accurate, and verifiable and they cannot be misleading, confusing, deceptive, or likely to be misleading, confusing, or deceptive. Manitoba lawyers cannot suggest they are superior to other lawyers, suggest or imply that they are aggressive, or disparage or demean other people, groups, or organizations. So, if you see an advertisement or a lawyer’s website and it says anything like this, they are breaking the Code of Conduct and acting unethically:
they are the one of the best criminal lawyers in Winnipeg
they provide the best legal help
they are the most trusted lawyer in Winnipeg
they are the best assault lawyer in Winnipeg
they are one of the best drive impaired lawyers in Winnipeg
they are the top cyber fraud lawyer in Winnipeg
they say when most lawyers give up and refuse to take up your case, they take it as a challenge to help you
they say they are aggressive or will do what it takes to win
they say they have a very high success rate
You also need to be careful about lawyers that claim they have won certain awards like “DUI Defence Attorney Top 10” from Attorney and Practice Magazine or “The National Trial Lawyers Top 40 Under 40” or if they advertise a rating from a website that they aren’t actually on, like Avvo.com. Some unethical lawyers claim they won awards that they actually didn’t.
Additionally, Manitoba lawyers cannot claim they are a specialist or an expert in a certain are. Instead, lawyers can only say they have a preferred area of practice. For example, I cannot say that I am a drive impaired expert, but I can say I am a criminal defence lawyer and a big part of my practice focuses on drive impaired cases.
A legit lawyer will not break the advertising rules in the Code of Conduct to try and get new clients. I know the advertising rules and make sure I am following them.
Trouble with the Law Society
A legit lawyer doesn’t break the rules
If a lawyer breaks one of the rules in the Law Society's Code of Conduct, the decision is publicly available. Before you decide to hire a lawyer, you may want to check to see:
A legit lawyer will not constantly be in trouble with the Law Society. I have not been disciplined, suspended, or on an undertaking with the Law Society of Manitoba.
About the author
Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.