Can a court-appointed criminal defense lawyer in Texas be paid a county fee schedule that pays more if the case goes to trial than if it ends earlier?

Plain-English summary

The opinion considers a Texas county that pays appointed lawyers for representing indigent criminal defendants under a fee schedule adopted by the district court judges. The schedule lets a lawyer choose in advance to take the scheduled flat fee for the whole case or to bill hourly; the question covers only the flat-fee option. Under that schedule the fixed fee varies by disposition: a pre-indictment dismissal pays half of what a guilty plea or post-indictment dismissal pays, and a case that is tried pays the most.

Rule 1.04(e) bars a lawyer from arranging, charging, or collecting a contingent fee in a criminal case. The Committee identifies the reason for that ban, quoting the ABA's annotation that a fee based on acquittal creates a conflict because it may tempt counsel to push for trial rather than a plea bargain, or to forgo mitigating evidence that could lead to a lesser-included conviction.

The Committee concludes the county's schedule is not a contingent fee. The amount paid does not depend on whether the lawyer obtains a favorable result; the lawyer is paid the scheduled amount regardless of outcome. The differing amounts instead reflect the differing time and effort typical of each disposition, a pre-indictment dismissal usually taking less effort than a plea, and a trial the most. Quoting the ABA Standards for Criminal Justice and citing the Georgia Supreme Court's decision in Fogarty v. State, the Committee reasons that the critical element of a contingent fee is some chance the lawyer will not be paid because of an unwanted result for the client; a fee that varies with the extent of the lawyer's services, not with success, is not contingent.

In practice

Under this opinion, and under the Texas rule as it stood at the time, a court-appointed criminal defense lawyer may accept payment under a county fee schedule that sets fixed fees by the stage at which the case is disposed of. The opinion holds that such a schedule is permissible under Rule 1.04(e) when two conditions are met: the amount payable is not contingent on a successful outcome for the client, and the schedule is a rational attempt to relate the fee to the time and effort the representation involves. The opinion does not address hourly billing under the same schedule, which it sets outside the question presented.

Common questions

Q: Does Rule 1.04(e) ban every fee that changes with how a criminal case ends?

A: No. Per Opinion 636, the rule bans contingent fees, and the Committee says the critical element of a contingent fee is some chance the lawyer goes unpaid because of an unwanted result for the client. A schedule that pays a fixed amount regardless of outcome is not contingent even if the amount differs by disposition stage.

Q: Why is it permissible to pay more for a case that goes to trial?

A: The Committee reasons that the higher trial fee reflects the greater time and effort a trial typically requires, not a reward for winning. Relating the fee to the work involved, rather than to success, is what keeps the schedule outside Rule 1.04(e).

Q: What would make a criminal fee arrangement an improper contingent fee?

A: The opinion points to a fee that depends on the result, such as one paid only on acquittal. The Committee quotes the concern that an acquittal-based fee may tempt counsel to push for trial over a plea bargain or to forgo mitigating evidence.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.04(e), which prohibits arranging, charging, or collecting a contingent fee for representing a defendant in a criminal case (the counterpart of ABA Model Rule 1.5(d)). The Committee draws the contingent-fee definition from the ABA's Annotated Model Rules and the ABA Standards for Criminal Justice, and from the Georgia Supreme Court's reasoning in Fogarty v. State.

Citations and references

Rules of Professional Conduct:

• MR 1.5(d) (no contingent fee in a criminal case)
• Texas Disciplinary Rule 1.04(e)

Cases:

• Fogarty v. State, 513 S.E.2d 493 (Ga. 1999), an advance fee reduced if charges are dismissed before trial is a valid, non-contingent fee arrangement

Other authorities cited:

• Annotated Model Rules of Professional Conduct (ABA, 7th ed. 2011), Rule 1.5 annotation on contingent fees in criminal cases
• ABA Standards for Criminal Justice: Prosecution Function and Defense Function (ABA, 3d ed. 1993), Commentary to Standard 4-3.3

See also

• TX Ethics Op. 660: Contingent Fee on Gross Recovery With Subrogation
• TX Ethics Op. 679: Renegotiating a Flat Fee After Litigation Is Underway
• TX Ethics Op. 690: Criminal Defense Lawyer Holding Tangible Evidence From a Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-636/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_636.pdf

Original opinion text

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

QUESTION PRESENTED

Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a court-appointed criminal defense lawyer to accept payment from a county based on a fee schedule that authorizes fixed fees based on the stage at which the case is disposed of?

STATEMENT OF FACTS

A Texas county pays court-appointed lawyers for their services representing indigent criminal defendants according to a fee schedule adopted by the District Court judges in the county. The fee schedule permits lawyers to choose in advance either to receive the fee specified in the fee schedule for all services provided in a case or to bill by the hour. The question presented applies only to fees payable pursuant to the fee schedule.

The county's payment schedule provides that the fixed fee for representation in a criminal case varies depending on the type of disposition of the case. For example, the fixed fee for pre-indictment dismissals is one-half of the fixed fee payable if a case is disposed of by guilty plea or dismissal after indictment, and the highest fee is paid if the case is tried.

DISCUSSION

Rule 1.04(e) of the Texas Disciplinary Rules of Professional Conduct provides that "[a] lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case."

The primary reason for the ban on contingent fees in criminal cases is that "[a] fee based upon acquittal creates a conflict of interest because it may tempt a defense lawyer to push for trial rather than a plea bargain, or to forego mitigating evidence if it could lead to conviction of a lesser-included offense." Annotated Model Rules of Professional Conduct (American Bar Association, 7th Ed. 2011), Rule 1.5 Annotation–Subsection (d): Contingent Fees in Domestic Relations Matters and Criminal Cases at page 125.

In the facts presented, the amount paid pursuant to the county's fee schedule is not based on whether a lawyer obtains a favorable result for the client. Rather, a lawyer is paid the fee specified in the fee schedule without regard to the outcome. The rationale behind the differing fees appears to be that there are normally differences in the amount of time and effort required for representations of criminal defendants that result in different dispositions of the cases. Thus a pre-indictment dismissal should usually require less time and effort than a guilty plea based on a plea bargain. Similarly, a trial normally will require the most effort. The county's fee schedule reflects these expected differences in time and effort involved in the representation.

The Committee is of the opinion that "an agreement for payment of one amount if the case is disposed of without trial and a larger amount if it proceeds to trial is not a contingent fee but merely an attempt to relate the fee to the time and service involved." ABA Standards for Criminal Justice: Prosecution Function and Defense Function (American Bar Association, 3d ed. 1993) Commentary to Standard 4-3.3 at page 157.

In Fogarty v. State, 513 S.E.2d 493 (Ga. 1999), the Supreme Court of Georgia cited the Commentary to ABA Standard 4-3.3 quoted above in support of its holding that an agreement to pay defense counsel $25,000 in advance, with the fee reduced to $10,000 if the charges were dismissed before trial, was a valid fee arrangement. The Court reasoned that the "critical element" in a contingent fee contract is the existence of some chance that the lawyer will not receive the fee because of an unwanted result for the lawyer's client. The fact that the agreement in that case provided for a greater or lesser fee depending upon the extent of counsel's services did not make the agreement an improper contingent fee contract. 513 S.E.2d at 496.

In the factual situation here considered, the county's fee schedule does not constitute an impermissible agreement for a contingent fee in a criminal case because the lawyer is paid without regard to the outcome of the case. The county's fee schedule attempts to rationally relate the fees payable to the differences in the amount of time and effort required to represent the client in various dispositions of typical cases. Consequently, the fee schedule does not result in impermissible contingent fees in criminal cases.

CONCLUSION

It is permissible under the Texas Disciplinary Rules of Professional Conduct for a court-appointed criminal defense lawyer to accept payment from a county based on a fee schedule that authorizes fixed fees based on the stage at which a case is disposed of, provided that the amount payable is not contingent upon a successful outcome for the client and the fee schedule is based on an attempt to rationally relate the fee payable to the time and effort involved in the representation.

Tex. Comm. On Professional Ethics, Op. 636 (2013)