Can a criminal defense lawyer agree that the fee for the criminal case will be paid only out of any recovery in a related civil rights case?

Plain-English summary

A lawyer proposed to represent a client both in defending a criminal charge and in a possible civil rights claim arising from the same arrest. Under the proposed arrangement, if the client did not pursue the civil rights action he would pay the criminal fees directly; if he did pursue it, the fees for both the criminal and civil representation would be paid only from any proceeds of the civil action. The civil fee itself would be a fraction of any recovery. The committee was asked whether this violated former Rule 2-106(c)(4) (contingent fees in criminal cases) or Rule 5-103 (acquiring an interest in litigation).

On the contingent-fee question, the committee noted that Rule 2-106(c)(4) bars any contingent-fee agreement in a criminal defense, and that Rule 2-106(c)(1) defines a contingent fee as one contingent on the successful accomplishment of the subject matter of the agreement. Here the criminal fee was not contingent on success in the criminal defense; it was contingent on recovery in the civil case, and not contingent at all if no civil action was brought. Because the contingency did not relate to the subject matter of the criminal defense, the committee found no contingent-fee agreement under the literal terms of the rule. It added that the policy behind the criminal contingent-fee ban, stated in EC 2-19 as the absence of a res produced by criminal defense work, did not apply, because a successful civil action would produce a res.

On the acquisition-of-interest question, the committee applied Rule 5-103(a), under which a lawyer may acquire a proprietary interest in the cause only by a lien for fees or by a reasonable contingent fee in a civil case. So long as the civil contingent fee met the reasonableness requirement, the committee found no violation, since no proprietary interest would be acquired in the criminal proceeding.

Currency note

This opinion was issued in January 1984, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 1.5), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Does the ban on criminal contingent fees forbid paying the criminal fee out of a related civil recovery?

A: The opinion concluded no; because the criminal fee was contingent on the civil recovery, not on the outcome of the criminal defense, it fell outside the literal definition of a contingent fee in a criminal case under former Rule 2-106(c).

Q: Why did the policy behind the criminal contingent-fee ban not apply?

A: Per the opinion, EC 2-19 grounds the ban on the fact that criminal defense produces no res to pay the fee; here a successful civil action would produce a res, so that rationale did not fit.

Q: Did the arrangement give the lawyer an improper interest in the case?

A: No. The committee held that under Rule 5-103(a) a reasonable contingent fee in the civil case is permitted, and no proprietary interest would be acquired in the criminal proceeding.

Background and rules framework

The opinion applied former Illinois Code Rule 2-106(c)(4) and the definition in Rule 2-106(c)(1) (contingent fees, and the bar on them in criminal cases), EC 2-19 (the policy behind that bar), and Rule 5-103(a) (acquiring a proprietary interest in litigation). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.5, which sets fee standards and at Rule 1.5(d) prohibits contingent fees in criminal cases, corresponding to ABA Model Rule 1.5.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 2-106(c)(1), (c)(4), EC 2-19, Rule 5-103(a) (applied in the opinion)
• Illinois RPC 1.5 (2010 equivalent per the Board's affirmation)
• MR 1.5 (fees; Rule 1.5(d) bars contingent fees in criminal cases)

Other opinions cited:

• ISBA Opinion 246 (1965): under the prior rules, a higher fee on acquittal was once permitted in criminal cases

See also

• ISBA Ethics Op. 12-20: Contingent Fee for Recovering Unclaimed Funds
• ISBA Ethics Op. 13-01: Collecting a Fee Above a Court-Ordered Amount

Source

• Landing page: https://www.isba.org/ethics/opinions/8409