Gambling With Ethics and Constitutional Rights: a Look at Issues Involved With Contingent Fee Arrangements in Criminal Defense Practice

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 3WINTER 2004

Gambling with Ethics and Constitutional Rights: A Look at Issues Involved with Contingent Fee Arrangements in Criminal Defense Practice

Adam Silberlight(fn*)

I. Introduction

The general view is that use of contingency fees in criminal cases is an ethical violation.(fn1) Although most believe this to be true, compelling justification has not been put forth to explain why such an arrangement is per se unethical. Instead, proponents of the general view simply state that such an arrangement is contrary to public policy.(fn2) This is where the idea begins, and also where it ends. Indeed, the concept of contingent fees in criminal defense practice is a shortlived road that is rarely traveled upon. If one should look for persuasive guidance as to why this general view exists without having a vast foundational basis to rest upon, one might find himself on an empty journey without light at the end of the tunnel. With so many issues and interests intertwined, and so many questions left unanswered, one should still ask the basic question: "why?"

Perhaps the individual who embarked on this journey would not gain any more than what he or she already knows by reading this article. However, from an unbiased standpoint, this article attempts to shed light on the use of a contingent fee arrangement in criminal defense, and offers differing views pertaining to this topic. First, this article will generally describe what a contingent fee is. Second, the role and potential application of the contingent fee in both criminal and civil settings will be discussed. Third, problems associated with such an arrangement in criminal defense practice will be addressed, as will certain positive aspects of such an arrangement. Finally, this article will discuss how lawmakers could address this issue to ensure that contingency arrangements cannot be abused.

II. The Contingent Fee

A contingent fee depends on the outcome of a future event-an outcome the client seeks when an attorney is initially consulted.(fn3) Through use of such a plan, an attorney will receive a pre-set percentage of the total award obtained in the client's favor.(fn4) However, if the attorney is unsuccessful in his pursuit of the client's interest, then the attorney may walk away empty-handed. In essence, the attorney is gambling as he is taking a chance with his income whenever he proceeds with a case.(fn5)

Since this means that no initial nor regular fee must be paid for services rendered, clients with limits on their pocket books, or those who feel their claim is one which can not achieve victory, may be prompted to proceed with their claim anyway. This can have both positive and negative impacts on the practice of law,(fn6) an issue that in and of itself primarily pertains to the actual merit of the civil claim, a topic that transcends the scope of discussing the role of contingency fees in criminal cases. Nevertheless, as a consequence, clients with a low likelihood of success on the merits frequently have their claims litigated by attorneys employing a contingency fee plan.(fn7)

This may often be the scenario in civil cases, in which a client can choose whether to proceed with a claim. In contrast, criminal cases involve persons who are not litigating simply to further their interests-they are litigating to preserve and protect their interests.(fn8) Criminal defendants have no choice whether to litigate or not, for it is the State that commences proceedings, and failure to comply with authorities may result in steeper criminal sanctions for the defendant.(fn9) Unlike civil cases, in which an attorney can screen out meritless claims by refusing to accept a case, a criminal case is a situation in which the defendant is guaranteed to have an attorney.(fn10)

III. THE CONTINGENT FEE AND THE CRIMINAL DEFENSE ATTORNEY

It has been pointed out that in a criminal case, it is hard for an attorney to effectively screen out potential clients.(fn11) A majority of criminal defendants are indigent(fn12)- those who would ordinarily not have their cases taken by an attorney if in a civil trial.(fn13) This could mean that in criminal cases, those accused who are most likely to favor a contingency fee plan could be those with whom the attorney would least want to be making such a bargain.(fn14) Further, it may be harder for an attorney to conduct such a screening process because a criminal defendant may lack important attributes that help an attorney distinguish an individual with a high likelihood of conviction from another with a lower likelihood.(fn15) In fact, because of the general type of clientele that the average criminal defense attorney attracts, it may be acknowledged that a good criminal defense attorney makes sure that the client makes payment prior to the entry of a plea. This line of thinking illustrates the possibility that any fee arrangement in the criminal context may ultimately turn out to be a contingent one. As such, intentionally representing a criminal client under a contingency fee arrangement may not be too far of a stretch from what occurs in criminal defense practice every day.

So why would a criminal defense attorney want to take part in such a fee plan? Such a plan is enticing to a civil lawyer because he or she will get a hefty percentage of the pie if successful. Most civil trials are those in which a person's interest in property is at stake against an adversary,(fn16) whereas in a criminal trial, it is a person's liberty that is at stake against the government's interest in prosecuting the defendant.(fn17) As such, the amount of personal monetary gain that can result from a civil trial is not comparable to the gain that can result from a criminal trial. Because of the discrepancy between criminal and civil cases concerning the prospect of obtaining substantial financial gain, the criminal defense attorney will not receive as great a payoff as a civil attorney.

Notwithstanding this reality in criminal cases, there are usually two issues associated with a criminal defense contingency fee plan. One is that it may be a Constitutional violation.(fn18) The other is that it may be an ethical violation.(fn19) Nevertheless, the most common justification for declaring such a fee plan as improper in criminal cases is that it is contrary to public policy.(fn20) This premise rests upon the fact that there is no object of property produced from the litigation that can serve as a basis from which to formulate the amount due to an attorney.(fn21) To obtain or produce property is the primary goal of the civil plaintiff, and the lawyer is retained to achieve this goal. In a criminal proceeding in which the defendant may face a prison sentence, the primary goal of the defendant is to obtain freedom.(fn22) But, regardless of whether the proceeding is civil or criminal, the attorney vigilantly pursues the client's goals and, if victorious, both civil and criminal parties have reached their intended goals with the help of their lawyers. Notwithstanding, even if the goals of the client are successfully reached, the book on the potential problems associated with contingent fee arrangements is not closed.

IV. Potential Problems with Contingency Fee Plans being Utilized by Criminal Defense Attorneys

There are certain problems that may arise as a result of the use of a contingency fee plan.(fn23) For instance, the actions a lawyer undertakes to meet the needs of their criminal defendant clients and to earn their contingent fees may lead to ethical violations.(fn24) Because the lawyer's paycheck is dependent on the outcome of the case, there is a greater incentive to win, thus prompting an attorney to take part in corrupt practices that can improve the chances of success.(fn25) Of course, such incentive exists regardless of whether the forum is civil or criminal, but this piece strives to only address the role of the contingent fee in criminal practice. Although such a potentially corruptive situation may seem relevant only on the television drama, "The Practice," in which the lead star is regularly faced with a conflict between criminal defense and legal ethics, it should be apparent that such a situation could take place in real life.

Consider this hypothetical: A defense attorney proffers evidence tending to benefit the defendant. This evidence is not actually known to the lawyer to be false, but does not seem believable to the reasonable person. The defense attorney might not be so eager to present such incredible evidence if he knew that he would be paid regardless of the outcome in the case. The attorney's motive to present such evidence is much stronger when the facts indicate that the defendant will most likely be convicted. Using incredible evidence in this type of situation would prejudice the plaintiff in the civil trial, but would have a much more devastating effect in a criminal trial because there are more persons harmed by such an act: the People of the state represented by the prosecutor.

Although unethical techniques may be used by attorneys in civil cases,(fn26) a civil case differs from a criminal case in several important respects. In a civil case, the community in its entirety does not have as great an interest in the case as compared to a criminal case where the government has filed criminal charges against a defendant who has committed a serious...