An advance payment for your criminal defence lawyer

An advance says when you pay, not automatically what everything costs

An advance is an amount that is paid in advance for work or costs within the agreements made. The final financial ratio depends, among other things, on the assignment and the agreed calculation method. With an hourly rate, the actual time spent may differ from an initial estimate. With a fixed price, the definition of included work is essential. Therefore, ask separately: what is the amount intended for, how is the final bill calculated and what has been left out of the assignment?

A description as an advance payment for a criminal case provides little guidance if it later turns out that an appeal, a complaint or a separate confiscation case will be involved. The NOvA's rules of conduct require transparency about the financial agreements. This does not prevent every change, but it does provide a basis for timely consultation. The editorial core is that you must be able to read payment timing and price risk apart. A lawyer who is paid in advance has not automatically accepted an unlimited assignment for that one amount. (rules of conduct of the NOvA)

Define the first phase in concrete terms

A criminal case involves various activities: initial advice, file study, consultation, an interrogation, investigation requests and the hearing. Indicate which phase is included in the current budget. That also helps in terms of content. An advance payment for advice on a criminal order cannot be read without explanation as covering an extensive appeal. In addition, ask who does the work and what rate applies when a colleague or employee is called in. A clear agreement benefits an office more than a later dispute about expectations.

Write the definition in recognizable events. For example: studying the file to a specified extent, one substantive discussion and preparation of an announced hearing. This way you can later see what changed: additional accusations, a lot of additional material or a different process phase. A reasonable initial budget may contain uncertainties. The problem mainly arises when these uncertainties are not mentioned and a client therefore thinks he has paid a final price. An order confirmation must prevent that interpretation as much as possible.

Ask about starting points and a signal limit

A cost estimate is more useful when the assumptions are included. How much file material has been seen? How many hearings are expected? Which rates, VAT and other costs are applied? The NOvA information on price information emphasizes the importance of clarity about the calculation method. A loose total estimate without starting points makes it difficult to discuss a later exceedance. Therefore, ask which development gives rise to a new budget and when the lawyer will contact you about this.

A signal limit can organize financial consultations, but is not automatically a legally agreed cost ceiling. Determine exactly whether an amount only results in a warning or whether further work requires an additional appointment. Also discuss urgency: what happens if an extensive file unexpectedly arrives just before a hearing? An agreement that leaves no room for necessary process actions can be unworkable. The goal is a useful consultation moment, with clarity about responsibility and accessibility when time is short.

Settlement must be visible in the administration

Ask whether the advance will be debited directly from periodic invoices or will only be settled at a later time. The client must be able to see what work has been invoiced, what payment has been received and what balance remains. An interim invoice may otherwise give the impression that the same work is being paid for again. A clear specification gives the discussion a verifiable starting point: date, activities, time, rate and applicable additional items, insofar as the agreement made requires this.

Also agree on the frequency. Monthly information can make a cost increase visible sooner than a large final bill after several meetings. On the other hand, not every short action requires separate financial consultation. Find a practical relationship between overview and implementation. Save advance invoices, declarations and proof of payment for the same order. Anyone who only keeps bank transfers will miss the link with the invoiced work. If the balance is unclear, ask for a readable financial statement before incorrect assumptions pile up.

A personal advance and third party funds are different cash flows

An amount for fees should not be confused with money that a lawyer receives for a client from, for example, an opposing party. The rules about third-party funds and settlement have their own function. The NOvA rules of conduct cover, among other things, the conditions surrounding settlement and the role of consent or objection. If it is unclear, ask for what purpose an amount was received and on what agreement a settlement is based. The mere fact that money is in an office or foundation account does not explain its destination.

Therefore, never pay based on an orally communicated account number that differs from the office information. Check via a known contact channel which invoice and invoice belong to the order. That is an administrative check, not an indication that every change is suspicious. In addition, make a distinction between an advance on the lawyer's own account and amounts for another purpose. A clear flow of money prevents discussions about fees, compensation and money from a third party from becoming mixed up.

Research funded assistance before the financial choice

The Legal Aid Act and the associated rules determine when subsidized assistance is possible. The NOvA rules of conduct also impose responsibilities on the lawyer when discussing this option. A client should not automatically assume that a requested advance proves that financing legal assistance with government subsidies is impossible. Ask whether the option has been investigated, what information is required and what the financial consequences are if you consciously opt for paying assistance. Have that choice recorded in an understandable manner.

When financing legal assistance with a government subsidy, specific rules apply for a personal contribution and permitted costs. An ordinary private fee agreement cannot simply be added to this. It is also not freely permitted to first handle the same case on a paying basis and then on legal aid financing with a government subsidy or vice versa. It is precisely when financial circumstances change that substantive advice is needed about the correct system. So do not ask for an informal interim solution that only relies on an advance invoice. An appropriate financing choice precedes the practical payment arrangement.

Fictitious calculation example: a balance that is not yet a final price

In a fictional example, Mees and his lawyer agree on an hourly rate of 200 euros excluding VAT. He pays an advance of 2,420 euros including 21 percent VAT. Within this simplified example, that represents ten hours of fees, with no other costs. After six hours of work, there is financial space left for four hours when settled in this way. That does not mean that the remaining defense can be carried out within four hours. The example is about calculations, not about usual rates.

There will then be an additional file and an extra hearing. The lawyer discusses what work will be necessary as a result and makes a new assessment. The good agreement is not the tacit expectation that the first advance covers everything, but a recognizable moment for consultation about scope and costs. If a fixed price had been agreed for a clearly described package, then that agreement must be taken into account. The words on the invoice can therefore never be assessed separately from the order confirmation.

An additional advance requires explanation and a feasible time

When a new advance payment is requested, first check which work has already been settled and what follow-up is planned. Ask for the reason for the additional amount and the current budget. A client can become financially stuck without wanting to thwart the substantive defense. Discuss that early. The planning of consultation or a payment agreement may possibly be clarified. Don't promise an unfeasible payment to postpone a difficult conversation; this increases the tension just before an important process moment.

The question of what happens in the event of non-payment must be discussed carefully. A lawyer can set financial conditions, but must also comply with his professional obligations in the handling and possible termination of the assignment. A client should not assume that a missed payment automatically halts all process actions. Ask explicitly who will monitor a current term or hearing as long as a financial dispute exists. It is precisely this clarity that prevents an invoice problem from turning unnoticed into a missed legal remedy period or an unprepared hearing.

Seven agreements that make an advance understandable

Create a concise financial agreement card for the substantive assignment. A good map also shows what is still uncertain. The exact number of hours may be unknown in advance, but the calculation method and information regarding changes can be discussed. After each important new process piece, check whether the original assumptions are still correct. That is not distrust of the lawyer; it helps both parties to maintain realistic expectations about the assignment.

• Assignment: which phase and activities fall within the current agreement?
• Price: hourly rate or fixed price, VAT and stated other costs.
• Advance payment: destination, payment date and method of settlement.
• Overview: specification, frequency and visible remaining balance.
• Change: signal limit, new budget and emergency action.
• Financing: discussion of financing legal aid with a government subsidy and a defined financial choice.
• Closing: final settlement, reimbursement and monitoring of ongoing litigation matters.

A financial dispute should not push the criminal case out of the picture

In the event of termination or transfer, it must be clear which work will be settled, which advance has already been settled and whether an amount remains. Ask for a final bill. You may not equate an unspent amount with the entire original payment if work has already been done. Conversely, the word advance does not explain why any balance should be allowed to be retained. The agreement, the work performed and the justification must be read together.

If you disagree with a declaration, please specify which item or appointment is being disputed. The NOvA explains complaints and dispute routes, including the office complaint and other appropriate routes. Keep the substantive criminal case and its terms separately visible. Our conclusion: the best financial agreement not only provides an affordable start, but also controllability during the case and an understandable ending. Use the guide to attorney fees for the broader financial framework. (NOvA explains complaint and dispute routes · guide to attorney fees)