The Florida Bar
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.