NYSBA 2011-10-06

Can a lawyer offer to refund all legal fees if a traffic or other Vehicle and Traffic Law charge is not dismissed or reduced?

Short answer: The ban on contingent fees in criminal matters does not reach simple traffic infractions, which the Vehicle and Traffic Law deems noncriminal, but it does reach VTL violations that are misdemeanors or felonies. A refund tied to the outcome can be a prohibited contingent fee in a criminal matter, and any fee agreement or advertising must make clear that contingent fees are not available for misdemeanor or felony charges.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 880: Contingent Fees in Traffic Cases

Short answer: The prohibition on contingent fees in criminal matters does not apply to simple traffic infractions, which the Vehicle and Traffic Law deems noncriminal, but it does apply to VTL violations that are misdemeanors or felonies; a fee refund tied to the outcome can itself be a prohibited contingent fee in a criminal matter.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association'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.

View original opinion

Plain-English summary

The committee was asked whether a lawyer may offer to refund all legal fees paid in connection with Vehicle and Traffic Law (VTL) proceedings if the charges are not dismissed or reduced. Rule 1.5(d)(1) bars a contingent fee for representing a defendant in a criminal matter, so the answer required interpreting both "contingent fee" and "criminal matter" (paragraphs 1 through 3).

On "contingent fee," the committee held that when a client's entitlement to a refund depends on the outcome of the matter, the arrangement must comply with the contingent-fee rules, even though criminal-defense fees are typically paid in advance. Reading the rule to apply only to fees paid after the contingency would let the traditional prohibition be evaded too easily. The committee distinguished a Rule 1.16(e) refund of an unearned advance, which is required, from a refund keyed to the result, which functions as a contingent fee (paragraph 4).

On "criminal matter," the committee turned to the VTL, which proscribes traffic infractions, misdemeanors, and felonies. Simple traffic infractions, including most speeding tickets, are expressly designated noncriminal by VTL section 155. The committee surveyed authorities holding the contingent-fee ban inapplicable to essentially civil or administrative proceedings related to criminal conduct (such as license-revocation and forfeiture matters), and concluded that when the VTL defines the initial charge as a noncriminal traffic infraction, the proceeding is not a "criminal matter" under Rule 1.5(d), regardless of whether the venue is called a "criminal court," whether the District Attorney is involved, or whether incarceration is possible. When the initial charge is a misdemeanor or felony, however, the proceeding is a criminal matter and a contingent fee or outcome-based refund is impermissible even if the lawyer obtains a reduction to noncriminal charges. The committee noted it reached a different result from New Jersey Opinion 717 (2010), which applied that state's ban to quasi-criminal municipal-court matters (paragraphs 5 through 11).

Finally, the committee applied Rule 1.5(c) (contingent-fee agreements must be in writing and disclose expenses) and Rule 7.1(a) (no false or misleading advertising), holding that fee agreements and advertising for VTL representation must make clear that contingent fees or refunds are not available for misdemeanor or felony charges (paragraphs 12 through 15).

In practice

The opinion holds that, under Rules 1.5 and 7.1 as they stood at the time, whether a fee refund offer is a prohibited contingent fee depends on how the VTL classifies the initial charge. For a charge the VTL deems a noncriminal traffic infraction, the criminal contingent-fee ban does not apply, regardless of the court's label, the prosecutor's involvement, or the possibility of incarceration. For a charge that is a misdemeanor or felony, the ban applies and an outcome-based refund is impermissible even if the lawyer later obtains a reduction. The committee treated a refund triggered by the result as a contingent fee, reasoning that the prohibition would be too easily evaded if it reached only fees paid after the contingency. It added that fee agreements and advertising must make clear that contingent fees and refunds are unavailable for misdemeanor or felony charges, under Rules 1.5(c) and 7.1(a).

Common questions

Q: Can I advertise "full refund if your speeding ticket isn't dismissed"?

A: For a simple traffic infraction, which the VTL deems noncriminal, the criminal contingent-fee ban does not apply. But the advertising must make clear that no contingent fee or refund is available for misdemeanor or felony charges (paragraphs 10, 14).

Q: Does the ban apply to a DWI or other VTL misdemeanor or felony?

A: Yes. The committee held that when the initial charge is a misdemeanor or felony, the proceeding is a criminal matter and an outcome-based fee or refund is impermissible, even if the charge is later reduced to a noncriminal one (paragraph 10).

Q: Is a refund-if-not-dismissed arrangement really a "contingent fee"?

A: It can be. The committee held that when entitlement to a refund depends on the outcome, the arrangement must comply with the contingent-fee rules, distinguishing a Rule 1.16(e) refund of an unearned advance (paragraph 4).

Q: Does it matter that the case is heard in a court called "criminal court"?

A: No. The committee held the result turns on the VTL's classification of the charge, not on the court's name, the District Attorney's involvement, or the possibility of incarceration (paragraph 10).

Background and rules framework

The opinion interprets New York Rule 1.5(d)(1) (no contingent fee in a criminal matter), Rule 1.5(c) (requirements for contingent-fee agreements), and Rule 7.1(a) (no false or misleading advertising), corresponding to ABA Model Rules 1.5 and 7.1. The "criminal matter" analysis turns on the Vehicle and Traffic Law's classification of charges, particularly VTL section 155's designation of traffic infractions as noncriminal.

Citations and references

Rules of Professional Conduct:

MR 1.5 / NY Rule 1.5(d)(1): no contingent fee for representing a defendant in a criminal matter
NY Rule 1.5(c): contingent-fee agreements must be in writing and disclose expenses
MR 7.1 / NY Rule 7.1(a): no false, deceptive, or misleading advertising

Statutes:

N.Y. Vehicle and Traffic Law section 155: a traffic infraction is not a crime
N.Y. Vehicle and Traffic Law section 1193: classification of impaired and intoxicated driving offenses

Other opinions cited:

New Jersey Opinion 717 (2010): applying that state's ban to quasi-criminal municipal-court matters (committee reached a different result)
District of Columbia Opinion 262 (1995); N.Y. City 1986-3: scope of the criminal contingent-fee ban in related matters

Source

Landing page: https://nysba.org/ethics-opinion-880/