Can a criminal defense firm sign a retainer that limits its work to the pretrial stage and requires the client to hire separate counsel for trial?

NYSBA Ethics Opinion 1215: Limited Scope Representation in Criminal Cases

Short answer: The opinion concludes that a law firm may limit a criminal retainer to pretrial work only if the limitation is reasonable under the circumstances, the client gives informed consent, and the limitation is not prejudicial to the administration of justice; the committee adds that this standard will be hard to meet except in rare cases.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer's firm uses of counsel attorneys, paid a flat fee, to represent criminal defense clients. The retainer states the of counsel lawyer will handle the matter, limits the scope to obtaining a pretrial disposition (plea or dismissal), and tells the client that if the case goes to trial the client must engage the of counsel lawyer or another lawyer separately for trial. The firm asked whether that limited-scope retainer is permissible and whether it may pay the of counsel lawyer a flat fee.

The opinion treats the core question as whether the pretrial-only limit satisfies Rule 1.2(c), which permits limited scope representation if the limitation is reasonable under the circumstances, the client gives informed consent, and necessary notice is given to the tribunal. Building on N.Y. State 856 (2011) (limiting representation to arraignment), the committee applies three conditions: informed consent, reasonableness, and no prejudice to the administration of justice (Rule 8.4(d)). On consent, the lawyer must disclose what is excluded and the reasonably foreseeable consequences (Comment [6A] to Rule 1.2), including that the court may deny a later motion to withdraw or to substitute counsel near trial (citing People v. Young and People v. Arroyave). On reasonableness, the committee finds a bright line between pretrial and trial work usually cannot be drawn: investigation, forensic testing, and decisions like notice of psychiatric or alibi defenses (C.P.L. 250.10, 250.20) are integral to pretrial work, and predicting at the outset that a case will resolve without trial is highly speculative. So a pretrial-only limit will ordinarily be unreasonable in any case of complexity or with more than a slight chance of trial, and the retainer can never exclude steps a competent lawyer must take to ensure successor counsel can provide effective representation through final disposition.

On prejudice to the administration of justice, the committee identifies practical dangers: a defendant fearing abandonment may feel coerced to plead guilty (contrary to the client's plea decision under Rule 1.2(a)); a lawyer fearing the court will not allow withdrawal may push a plea against the client's interest; a pretrial-only lawyer may not be competent to try the case yet be required to if withdrawal is denied; and a late grant of withdrawal may leave successor counsel without time to prepare. The retainer is therefore impermissible unless the lawyer is competent to defend the charges including at trial, actually prepares and will be ready by the trial date if withdrawal or substitution is denied, and the client has the sophistication and resolve not to be coerced into a plea. On the flat fee, the committee sees no Rule 8.4(c) problem with paying of counsel lawyers a flat fee in the rare permitted case, so long as the firm does not mislead them that they could be required to try the case if the client fails to engage successor counsel and the court denies withdrawal.

In practice

Under this opinion, a New York criminal defense firm may use a pretrial-only retainer only when the Rule 1.2(c) conditions are met: the limit is reasonable, the client gives informed consent after disclosure of the exclusions and foreseeable consequences, and the arrangement does not prejudice the administration of justice. Per the opinion, that requires the retained lawyer to be competent to try the case and actually ready for trial on the scheduled date if the court denies withdrawal or substitution, and the retainer can never exclude steps needed for competent representation or to enable successor counsel. Per the opinion, the firm may pay of counsel lawyers a flat fee in such cases provided it does not mislead them about the risk of having to try the case.

Common questions

Q: Can a criminal retainer be limited to pretrial work only?

A: Rarely. Per the opinion, Rule 1.2(c) permits it only if the limit is reasonable, the client consents on an informed basis, and it does not prejudice the administration of justice, a standard hard to meet outside rare cases.

Q: Why is a pretrial-only limit usually unreasonable?

A: Per the opinion, pretrial and trial work cannot usually be separated cleanly: investigation, forensic testing, and defense-notice decisions (C.P.L. 250.10, 250.20) are integral, and predicting a no-trial outcome at the start is highly speculative.

Q: What if the court denies the lawyer's motion to withdraw before trial?

A: Per the opinion, the lawyer must continue and try the case under Rule 1.16(d); so the lawyer must be competent to defend at trial and actually ready by the trial date, and the foreseeable risk of denial must be disclosed up front.

Q: Can the firm pay the of counsel lawyer a flat fee for this work?

A: Yes, in the rare permitted case. Per the opinion, Rule 8.4(c) is not violated so long as the firm does not mislead the of counsel lawyer that the lawyer may have to try the case if the client does not engage successor counsel.

Background and rules framework

The opinion interprets Rule 1.2(c) (limited scope representation) with Comment [6A], Rule 1.1(b) (associating competent counsel), Rule 1.2(a) (client's plea decision), Rule 1.16(d) (continuing representation when a tribunal orders it), and Rule 8.4(c) and (d) (dishonesty and conduct prejudicial to the administration of justice). These correspond to ABA Model Rules 1.2, 1.1, 1.16, and 8.4.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.2(c) and Cmt. [6A], 1.2(a), 1.1(b), 1.16(d), 8.4(c)-(d)
• ABA Model Rules 1.2, 1.1, 1.16, 8.4 (analogues)

Statutes:

• N.Y. Criminal Procedure Law §§ 250.10, 250.20 (advance notice of psychiatric and alibi defenses); 22 NYCRR Part 130

Cases:

• People v. Young, 38 Misc.3d 381, 953 N.Y.S.2d 840 (N.Y. City Ct. 2012), withdrawal improper on the eve of trial
• People v. Arroyave, 49 N.Y.2d 264, 401 N.E.2d 393 (1980), substitution of counsel near trial

Other opinions cited:

• N.Y. State 856 (2011): limited scope criminal representation to arraignment

See also

• NY State Bar Op. 1214: Frivolous Arguments to a Court and Withdrawal
• NY State Bar Op. 1236: Divorce Mediation, Limited Scope, and Remote Practice
• NY State Bar Op. 1245: Minimum-Fee Clauses

Source

• Landing page: https://nysba.org/ethics-opinion-1215/