Before taking over a jailed defendant's case for a fee, must a D.C. successor lawyer notify the prior lawyer, and when can the fee be collected?
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This page answers the general question as of 2022. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 384 (published August 2022) interprets D.C. Rule 7.1(f), which the D.C. Rules added in 2007 at the request of the Public Defender Service and the U.S. Attorney's Office to protect already-represented incarcerated persons from lawyers who solicit fee-paying engagements on unrealistic promises of success. Rule 7.1(f) requires any lawyer (or person acting for a lawyer) who solicits a person incarcerated at the D.C. Jail, the Correctional Treatment Facility, or a D.C. juvenile detention facility, for the purpose of representing that person for a fee in a then-pending criminal case, to give timely and adequate notice to the person's then-current lawyer before accepting any fee.
Because Rule 7.1(f) does not define "accepting any fee," the Committee addresses a practical problem: criminal defense lawyers often require prepaid flat fees or substantial deposits before entering an appearance. Reading Rule 7.1(f) to bar even receiving the money until after the appearance, the opinion concludes, would make it hard for incarcerated persons to exercise their absolute right to change counsel. The Committee therefore concludes that nothing in Rule 7.1(f) prohibits successor counsel from receiving payment into the lawyer's trust account pending timely service and filing of a notice of appearance or motion to substitute.
On what counts as "timely and adequate notice," the opinion looks to D.C. Superior Court Criminal Procedure Rule 112 (notice of appearance within three days of retention) and Rule 49 (service on the party's attorney). The Committee concludes that serving and filing an entry of appearance consistent with those rules satisfies Rule 7.1(f)'s purposes of protecting the client's interests and avoiding waste of prior counsel's and the court's resources. The opinion reads Rule 7.1(f) alongside Rule 1.5(a) (reasonable fees), Rule 1.8(e) (third-party payment of a client's fees), and Rule 1.15(e) (prepaid flat fees are not earned on receipt and belong in trust until earned).
In practice
Under this opinion, a D.C. lawyer approached to take over the case of someone held in a D.C. correctional or juvenile facility in a pending criminal matter may receive the fee, but should route it into the lawyer's trust account and give timely, adequate notice to current counsel before treating the fee as accepted. The opinion concludes that filing and serving an entry of appearance consistent with D.C. Superior Court Criminal Procedure Rules 49 and 112 (an appearance within three days of retention, served on prior counsel) satisfies Rule 7.1(f).
The opinion ties this to the surrounding fee rules: the fee must be reasonable under Rule 1.5(a); if a family member or other third party pays, the Rule 1.8(e) conditions (informed consent, no interference with the lawyer's independent judgment, and confidentiality) apply; and under Rule 1.15(e), a prepaid flat fee belongs in trust until earned, and the opinion concludes any waiver of trust treatment normally would not be operative before the lawyer has given the required notice of appearance to prior counsel.
Common questions
Q: Can I collect my fee before I enter an appearance for a jailed client?
A: The opinion concludes you may receive the payment into your trust account, but you must give timely and adequate notice to the client's current lawyer before accepting the fee, which the opinion ties to filing a notice of appearance under the D.C. Superior Court criminal rules.
Q: What counts as "timely and adequate notice" under Rule 7.1(f)?
A: The opinion concludes that serving and filing an entry of appearance consistent with D.C. Superior Court Criminal Procedure Rules 49 and 112 (an appearance within three days of retention, served on the prior attorney) satisfies the rule's notice requirement.
Q: A relative wants to pay for the jailed client's defense. Anything extra to do?
A: The opinion notes that Rule 1.8(e) allows third-party payment only with the client's informed consent, without interference with the lawyer's independent judgment, and with the client's confidential information protected under Rule 1.6.
Q: Can I treat the prepaid flat fee as mine right away?
A: No. The opinion concludes that under Rule 1.15(e) a prepaid flat fee belongs to the client and must stay in trust until earned, and that a waiver of trust treatment normally would not be operative before the lawyer has given the required notice of appearance to prior counsel.
Background and rules framework
The opinion centers on D.C. Rule 7.1(f), a District-specific provision (added in 2007) that imposes notice obligations on a lawyer who solicits an incarcerated person in a pending criminal case for a fee-paying engagement, requiring notice to current counsel before the lawyer accepts a fee. It reads that rule together with Rule 1.5(a) (fees must be reasonable), Rule 1.8(e) (compensation from someone other than the client), and Rule 1.15(e) (prepaid fees held in trust until earned), and with D.C. Superior Court Criminal Procedure Rules 49 and 112 governing entry and service of an appearance.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 7.1(f) (notice to current counsel before accepting a fee from an incarcerated person; no Model Rule counterpart)
- D.C. RPC 1.5(a) / Model Rule 1.5 (fees must be reasonable)
- D.C. RPC 1.8(e) / Model Rule 1.8 (compensation from a third party)
- D.C. RPC 1.15(e) / Model Rule 1.15 (prepaid fees held in trust until earned)
Court rules:
- D.C. Super. Ct. Crim. P. R. 112 (notice of appearance within three days of retention)
- D.C. Super. Ct. Crim. P. R. 49 (service on the party's attorney)
Cases:
- In re Mance, 980 A.2d 1196 (D.C. 2009), prepaid flat fees belong in trust until earned
Other opinions cited:
- D.C. Bar Ethics Op. 355: milestone arrangements for earning flat fees
See also
- ABA Formal Op. 501: Solicitation Under Rule 7.3
- DC Ethics Op. 389: Flat Fees, Subscription Fees, and Disbarment
- ABA Formal Op. 505: Fees Paid in Advance
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-384
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