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

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

Paying legal fees can be super stressful, especially when your facing federal criminal charges. Contingency fee arrangements, where you only pay your lawyer if you “win” your case, might sound pretty good. But can you actually do contingency fees for federal criminal cases? Let’s break it down.

What are contingency fees?

A contingency fee is when a lawyer’s payment depends on if they win the case. For example, the lawyer gets a percentage (usually 33-40%) of any settlement or award if they win. But if they lose, the lawyer doesn’t get paid at all. Contingency fees are really common in personal injury and other civil lawsuits.

The main pros of contingency fees are:

• Makes legal help more accessible for people who can’t afford upfront fees
• Motivates lawyers to work hard and win

And some cons are:

• Riskier for lawyers – they might work hard but get nothing
• Clients may still have to pay expenses even if they lose

Are contingency fees allowed in federal criminal cases?

The bottom line is contingency fees are mostly prohibited for federal criminal cases because of ethics rules. Let’s look at why:

ABA Model Rules

The American Bar Association’s Model Rules of Professional Conduct ban contingency fees in criminal cases. Specifically, Rule 1.5(d) says a lawyer cannot charge:

(2) a contingent fee for representing a defendant in a criminal case.

Most states base their ethics rules on the ABA Model Rules. So contingency fees are a no-go in criminal defense throughout the country.

Public policy concerns

There are good public policy reasons behind this rule. Tying a lawyer’s pay to winning a criminal case could encourage unethical behavior. Like coercing defendants to plead guilty when they shouldn’t, just so the lawyer gets paid. Or not putting in full effort if a case seems unlikely to succeed.

The justice system depends on criminal defense lawyers putting their client’s interests first – not their own potential payout. So contingency fees pose too much risk of undermining their duty to clients.

Federal court rules

Many federal district courts also have local rules prohibiting contingency fees in criminal cases. For example, the Eastern District of New York and Western District of New York say contingency fees in criminal matters are “unethical and improper.”

Are there any exceptions?

There are a few narrow exceptions where contingency fees may be allowed:

Ancillary civil proceedings

If a criminal case has related civil proceedings, like asset forfeiture or wrongful conviction lawsuits, contingency fees may be permitted for that civil aspect. But still not for the actual criminal defense representation.

Appeals

Some ethics opinions have said contingency fees may be okay for criminal appeals, but not trial work. The logic is there’s less concern about unethical incentives for lawyers when just handling appeals. But many jurisdictions still prohibit contingency fees at any stage.

Misdemeanors

Contingency fees are banned in federal felony cases. But for federal misdemeanors, it’s a gray area lacking clear guidance. There’s an argument that the public policy concerns are diminished for small misdemeanor matters. But federal courts rarely allow contingency fees in any criminal case.

What about “low bono” arrangements?

If you can’t afford a lawyer’s full rates, some offer “low bono” arrangements. This is when a lawyer charges reduced rates, like $50/hour, instead of their typical $500/hour. While not contingency fees, low bono can ease the financial burden.

Many federal public defenders also let clients make payments on a sliding scale based on income. So if you qualify for a public defender, it’s definitely worth applying!

Key takeaways

• Contingency fees are banned for most federal criminal cases under ethics rules and public policy.
• Narrow exceptions may apply for related civil proceedings, appeals, or misdemeanors.
• Low bono arrangements are an option for reduced rates if you can’t afford a lawyer’s full fees.
• Federal public defenders provide affordable representation if you qualify.

The bottom line is contingency fees are very limited in federal criminal law. But alternatives like low bono or public defenders can ease the financial reality of mounting a defense. With smart choices, you can get experienced representation even when money is tight.