NCJ Number
137133
Journal
Journal of Criminal Law and Criminology Volume: 82 Issue: 3 Dated: (Fall 1991) Pages: 498-546
Date Published
1991
Length
49 pages
Annotation
In a wave of distrust and misunderstanding, courts and commentators have summarily swept criminal contingent fees away without argument.
Abstract
These opinions do not seem to be informed by advocacy in favor of contingent fees and present no thorough analysis of the purported flaws of such fees. The recent view is that criminal contingent fees are unethical. The American Bar Association has adopted an explicit ban on criminal contingent fees, although the American Trial Lawyers' Association permits such fees in its code of ethics. Any evaluation of ethics rules requires an examination of existing practices. Fee setting by criminal lawyers must be viewed through the "distorting prism" of the criminal lawyer's fundamental remuneration problem. One of the strongest reasons given for the ban on criminal contingent fees is that they lead to conflicts of interest between attorney and client. What is missing from discussions of these fees and conflicts of interest is the psychology of litigators: their intense desire to obtain the best results their skills can achieve. Another argument against criminal contingent fees is that they mislead the client. One commentator has suggested that the true goal of the ban on such fees is to prevent or restrain competition from lawyers who may not collect fees in advance. The U.S. Supreme Court has explicitly accepted a contingent fee arrangement because it has rejected the argument that forfeiture possibilities overly burden the right to counsel of one's choice. The author concludes that the prohibition on criminal contingent fees is the result of irrelevant conceptual thinking, unverified concerns about conflicts of interest, and prejudice against criminal attorneys. Repeal of the ban on these fees may be of particular benefit to the middle class who are eager to pay for results instead of services. 276 footnotes