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Why Criminal Attorneys Can’t Take Cases on “Contingency”

You’ve seen the ads: A loud crash, an ambulance, a slick lawyer asking you to call him and promising that if he loses, you pay NOTHING! If he wins, the attorney collects a percentage (between a third and half) of the award. This is called a “contingency fee” and while all criminal defense attorneys would like to assure victories for their clients, the California State Bar prohibits criminal defense lawyers or criminal law attorneys from taking any criminal matter on a contingency basis.

Historically, contingency arrangements developed so that the poor could sue over damages to their person or property. Proponents argued that this type of system encouraged attorneys to work as hard as possible to win. Critics responded that only litigants with a good chance of winning would be able to obtain representation, unless the attorney was otherwise compensated.

So why isn’t this “pay for performance” standard used by criminal defense lawyers?  After all, if an attorney is so good, why can’t he or she in some way guarantee an outcome? If the client is sent to jail instead of having his case dismissed, why does he have to pay anything to his criminal defense attorney? If a client’s case is dismissed, why isn’t he entitled to at least a partial refund of his fees?

The simple answer is that it’s illegal.

Rule 1.5(d) of the American Bar Association’s Model Rules of Professional Conduct

states outright:

A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case

The theory behind this prohibition is that there are too many factors beyond a criminal defense attorney’s control such as the testimony of police officers, prior convictions of a defendant, the outcome of forensic analysis, crime scene evidence and the individual thoughts, perceptions and biases of prosecuting attorneys, judges and even jurors.

Second, policy advocates claim that contingency cases could encourage attorneys to engage in unethical behavior, such as bribery of police officers, DAs, and other public officials to sway the outcome in their favor.

Finally, analysts argue that allowing contingency fees on criminal law cases, would dissuade or discourage attorneys from taking any criminal defense cases at all, resulting in very few attorneys (and perhaps only the least reputable or least qualified of attorneys) available to handle one of the most difficult and important areas of law.

If you or a loved one has been charged with a criminal case and need a criminal defense lawyer, call Orange County criminal law attorney Staycie R. Sena at 949-477-8088 for a free consultation now.