Can a lawyer take a contingent fee to pursue a writ of error coram nobis to set aside an old criminal conviction?

Plain-English summary

Opinion 262 (adopted November 21, 1995) answered whether a lawyer could enter a contingent fee agreement to represent a person, previously convicted by court-martial and since released, seeking to set the conviction aside through a writ of error coram nobis. If successful, the individual would be entitled to back pay and allowances, from which the contingent fee would be paid. Rule 1.5(d) bars a lawyer from charging or collecting a contingent fee "for representing a defendant in a criminal case."

The committee concluded that Rule 1.5(d) does not apply to a coram nobis proceeding. It read the rule as aimed at criminal cases in which the government proceeds against a defendant, whereas a coram nobis petition is filed by an individual, as petitioner, after release from custody, claiming error in the earlier proceeding. The committee found that the various rationales offered for the contingent-fee ban did not fit a coram nobis case: the concern that lawyers would avoid less meritorious criminal defense does not apply once the criminal proceeding is complete; the "no res" rationale fails because a court-martial coram nobis may generate a res (back pay and allowances) from which a fee can be paid; and the point that contingent fees are unnecessary because indigent defendants have a right to counsel does not hold, since there is no right to counsel in a coram nobis proceeding, so a contingent fee may enable an individual to obtain counsel he otherwise could not afford.

The committee added that even if a coram nobis proceeding were treated as criminal, the petitioner would have to be a "defendant" for Rule 1.5(d) to apply, and it concluded that at this stage the coram nobis petitioner who initiates the action is not a "defendant" within the rule. On either path, the committee concluded a lawyer may accept a contingent fee in such a proceeding.

Currency note

This opinion was issued in 1995, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does the criminal-case contingent fee ban apply to a coram nobis petition?

A: No. The committee concluded that Rule 1.5(d) is aimed at cases where the government proceeds against a defendant, and that a coram nobis proceeding, initiated by the released former defendant as petitioner, falls outside the rule.

Q: Why did the committee find the usual reasons for the ban inapplicable?

A: It concluded the criminal proceeding was already complete, that a court-martial coram nobis could produce a res (back pay) to pay a fee, and that, because there is no right to counsel in a coram nobis case, a contingent fee may be the only way an individual can secure representation.

Q: Is the coram nobis petitioner a "defendant" under Rule 1.5(d)?

A: The committee concluded that he is not. Even if the proceeding were treated as criminal, the rule reaches only a "defendant in a criminal case," and the person who initiates the coram nobis action is a petitioner, not a defendant.

Background and rules framework

The opinion interpreted D.C. Rule 1.5(d), which prohibits a contingent fee for representing a defendant in a criminal case. Comment [6] notes the provision continues the prohibition under the prior Code of Professional Responsibility, whose Ethical Consideration 2-20 grounded the ban partly on the view that criminal defense does not produce a res from which to pay a fee. The committee described the coram nobis writ as the only post-conviction remedy to vacate a federal conviction after release from custody, granted only to correct fundamental errors.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.5(d) / Model Rule 1.5 (no contingent fee for a defendant in a criminal case)

Statutes:

• 28 U.S.C. § 1651(a) (all writs)
• 28 U.S.C. § 2255 (federal post-conviction motions)

Cases:

• United States v. Morgan, 346 U.S. 502 (1954), coram nobis available under the all-writs section
• United States v. Craig, 907 F.2d 653 (7th Cir. 1990), applying civil rules to coram nobis
• Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985), applying criminal rules to coram nobis

See also

• ABA Formal Op. 94-389: Contingent Fees
• DC Ethics Op. 347: Reverse Contingent Fees
• ABA Formal Op. 93-373: Reverse Contingent Fees

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-262