Can a criminal defense lawyer charge a fee, paid in advance, that is refundable if the lawyer fails to obtain post-conviction relief?

Plain-English summary

The inquiring attorney asked whether the prohibition against contingent-fee arrangements in criminal cases applies where the attorney and client agree that a fee already paid will be refunded if the attorney is unsuccessful in obtaining post-conviction relief from a criminal conviction. The committee unanimously found the arrangement prohibited.

The committee pointed to EC 2-20 and DR 2-106(C), which expressly address contingency arrangements in criminal cases. EC 2-20 states that public policy condemns contingent-fee arrangements in criminal cases, largely because legal services in criminal cases do not produce a res with which to pay the fee, and DR 2-106(C) provides that a lawyer shall not enter into, charge, or collect a contingent fee for representing a defendant in a criminal case.

The committee identified the critical question as whether the arrangement was in fact a contingency fee. It noted that contingency fees are generally paid after successful litigation or settlement, whereas here the fee was paid in advance with a right to a refund on lack of success. The committee found no operative distinction between the two, because each is predicated upon success, and accordingly held the arrangement prohibited.

Currency note

This opinion was issued in the early 1980s, before The Florida Bar's adoption of the 2006 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 Treat this page as historical context, not current guidance.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.

The official PDF of this opinion does not carry a printed issuance date; the opinion number places it around 1980.

Common questions

Q: Can a criminal lawyer offer a refund if post-conviction relief fails?

A: The opinion concluded such a refundable-on-failure fee is an improper contingent fee in a criminal case.

Q: Why is a refundable fee treated as a contingent fee?

A: The opinion concluded there is no operative distinction, because a fee refundable only on lack of success is predicated on success just as a traditional contingent fee is.

Q: What rules govern contingent fees in criminal cases?

A: The opinion concluded EC 2-20 and DR 2-106(C) condemn and prohibit contingent-fee arrangements for representing a defendant in a criminal case.

Background and rules framework

The opinion interprets CPR EC 2-20 and DR 2-106(C), which prohibit contingent fees in criminal cases. This corresponds to Model Rule 1.5(d), which likewise bars a contingent fee for representing a defendant in a criminal matter.

Citations and references

Rules of Professional Conduct:

• CPR EC 2-20; DR 2-106(C) (Model Rule 1.5(d), no contingent fee in a criminal case)

See also

• FL Bar Ethics Op. 16-1: Forgiving Advanced Costs
• FL Bar Ethics Op. 88-10: Choice-of-Law Contingent Fee for an Out-of-State Matter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-80-5/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-80-5-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 80-5
Advisory ethics opinions are not binding.

It is improper for an attorney to enter into a fee arrangement in a criminal case providing that the fee, paid in advance, will be refunded if the attorney is unsuccessful in obtaining post-conviction relief from a criminal conviction.

CPR: EC 2-20, DR 2-106(C)

Mr. Richman stated the opinion of the committee:

In a variation upon a theme the inquiring attorney asks whether the prohibition against contingent fee arrangements in criminal cases is applicable where the attorney and client agree that a fee paid will be refunded if the attorney is unsuccessful in obtaining post-conviction relief from a criminal conviction.

The Committee unanimously finds that such an arrangement is prohibited.

Ethical Consideration 2-20 and Disciplinary Rule 2-106(C) of the Florida Code of Professional Responsibility expressly address the issue of contingency arrangements in criminal cases. In pertinent part, they state the following:

EC 2-20: Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee.

DR 2-106(C): A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. . . .

The critical question to be decided in applying EC 2-20 is whether the arrangement was in fact a contingency fee arrangement. Generally, contingency fees are paid after successful litigation or settlement by counsel, whereas here the fee was paid in advance with entitlement to a refund upon lack of success.

In the Committee's opinion there is no operative distinction between the two arrangements in that each is predicated upon success and, accordingly, the arrangement is prohibited.