FLORIDA BAR ETHICS OPINION
Advisory ethics opinions are not binding.
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.
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