Can a criminal defense lawyer charge a contingent fee, or a bonus tied to acquittal or a lighter sentence?

Plain-English summary

A lawyer asked whether he could agree to a criminal-defense fee where the final amount would take the results obtained into account among other factors. The committee held that DR 2-106(C) flatly bars a lawyer from arranging, charging, or collecting a contingent fee in a criminal case, and that EC 2-20 condemns such arrangements as a matter of public policy, in part because criminal legal services do not produce a res from which to pay the fee. It noted that under the former Canons contingent criminal fees were not treated as improper per se, but there was a consensus among commentators that they were void as against public policy.

The committee read the prohibition broadly. DR 2-106(C) encompasses not only wholly contingent fees but also agreements that add, to a fixed basic fee, a further fixed fee contingent on a specified result such as acquittal, probation, a fine, or a minimum term of punishment.

At the same time, the committee held the rule does not bar a reasonable criminal-defense fee that takes into account the factors in DR 2-106(B)(1) through (7). Subdivision (4) recognizes results obtained as a factor bearing on the reasonableness of a fee, as is common in civil tax and antitrust matters. The committee saw no ethical reason results could not be weighed in criminal work where the DR 2-106(B) factors form the basis of the fee, cautioning that the fee must be reasonable and that the results factor should not be given excessive weight so as to defeat the policy of DR 2-106(C).

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (fees and the bar on contingent fees in criminal cases are now governed by Rule 1.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a contingent fee ever allowed in a criminal case?

A: Under this opinion, no. DR 2-106(C) bars arranging, charging, or collecting a contingent fee in a criminal case, and EC 2-20 condemns the practice on public-policy grounds.

Q: What about a flat fee plus a bonus if the client is acquitted?

A: Per the opinion, that is also prohibited; the committee read DR 2-106(C) to reach a fixed bonus contingent on a result such as acquittal, probation, a fine, or a minimum sentence.

Q: Can the lawyer consider how the case turned out when setting a fee?

A: Yes, within limits. The committee held that a reasonable non-contingent fee may weigh "results obtained" as one of the DR 2-106(B) factors, so long as it is not given excessive weight that would defeat the contingent-fee policy.

Background and rules framework

The opinion applies EC 2-20 and DR 2-106(B) and (C) of the then-current New York Code, distinguishing a prohibited contingency from a permissible reasonableness factor. The current analogue is Rule 1.5, which retains both the general reasonableness factors and the specific prohibition on contingent fees for representing a defendant in a criminal case.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees; prohibition on contingent fees in criminal cases)
• NY EC 2-20; DR 2-106(B), DR 2-106(C)

Other opinions cited:

• ABA Inf. 337: contingent fees in criminal cases
• ABA 832 (1965): contingent criminal fees

See also

• NY State Bar Op. 443: A contingent fee to collect past-due support
• NY State Bar Op. 408: Fee division in a wrongful-death case
• NY State Bar Op. 414: Agreeing in advance on a division of fees

Source

• Landing page: https://nysba.org/opinion-412/