Contingency Fees for Federal Criminal Cases: What You Need to Know

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Last Updated on: 21st September 2023, 11:02 pm

Contingency Fees for Federal Criminal Cases: What You Need to Know

Paying legal fees can be daunting, especially when facing federal criminal charges. Contingency fee arrangements, where you only pay your attorney if you “win” your case, may seem like an attractive option. But are contingency fees allowed in federal criminal cases? Let’s break it down.

What are contingency fees?

A contingency fee is when a lawyer’s payment depends on the outcome of the case [1]. For example, the attorney receives a percentage (often 33-40%) of any settlement or award if the case succeeds [2]. But if the client loses, the lawyer gets paid nothing. Contingency fees are common in personal injury and other civil cases.

The main advantages of contingency fees are:

• Improves access for clients who can’t afford upfront legal fees
• Motivates lawyers to get the best results for their clients
• Shifts financial risk from client to lawyer

But critics argue contingency fees also:

• Encourage frivolous lawsuits just to get settlement money
• Incentivize lawyers to settle cases too quickly for too little money
• Result in excessive fees relative to the work required

Are contingency fees allowed in federal criminal cases?

In most situations, no. Model ethics rules prohibit contingency fees for representing criminal defendants [4]. This applies to both federal and state criminal matters. Most states follow the model rule.

For example, New York’s Rule of Professional Conduct 1.5(d) states contingency fees are prohibited when “defending a criminal charge.” California Rule of Professional Conduct 1.5(c)(1) also bans contingency fees in criminal cases.

There are three main reasons contingency fees are prohibited in criminal defense:

1. They undermine the presumption of innocence. Tying fees to case outcomes suggests the defendant is guilty.
2. They give lawyers a personal financial stake in conviction or acquittal, rather than focusing solely on the client’s interests.
3. Wrongful convictions become more likely if lawyers are incentivized to push for guilty pleas or discourage filing appeals.

The American Bar Association explains contingency fees in criminal cases “are inconsistent with the exercise of independent professional judgment on behalf of a client who may be facing loss of liberty or even life”[4].

Are there any exceptions?

In rare cases, contingency fees may be allowed in federal criminal matters. For example:

• Ancillary civil proceedings – If there is a related civil case, such as asset forfeiture or wrongful conviction lawsuit, contingency fees may be permitted for that separate proceeding.
• Appeals – Some states allow contingency fees for criminal appeals after conviction, since presumption of innocence no longer applies.
• Non-payment cases – If the government refuses to pay court-ordered attorney fees, some lawyers request contingency fees to recover those costs.

However, these situations are the exception. Ethics rules still prohibit contingency fees for the actual criminal trial or plea bargaining phase.

What are the alternatives to contingency fees in federal criminal cases?

Don’t lose hope if you can’t afford high retainers or hourly rates. Here are some options to make legal representation more affordable:

• Fixed fees – Pay a flat rate for certain services or case stages.
• Unbundled services – Hire a lawyer just for specific tasks like reviewing charges or attending hearings.
• Payment plans – Spread costs over time in installments.
• Credit cards – Many law firms accept credit card payments.
• Borrow money – Personal loans or borrowing from friends/family.
• Home equity – Use home equity loan or line of credit.
• Retirement funds – Withdraw money from 401(k) or IRA, but watch for taxes/penalties.
• Public defender – Government-paid attorneys if you qualify based on income.
• Pro bono services – Nonprofit legal aid organizations or lawyers volunteering their time.

Discuss all these options during your lawyer consultation. Choose the payment method you’re most comfortable with. The most important thing is having experienced legal counsel on your side.

The bottom line on contingency fees in federal criminal cases

Contingency fees are prohibited for most federal criminal matters under ethics rules. This protects defendants’ rights and prevents perverse incentives. But alternative billing arrangements can ease the financial burden. With an open dialogue and creative thinking, you and your lawyer can find a fair payment plan.

Facing federal charges? Don’t go it alone. Consult with a criminal defense attorney to understand your options. The stakes are high, but skilled representation can help achieve the best possible outcome.