Can a lawyer charge a flat amount for a traffic-ticket case where the lawyer pays any fine out of that amount and keeps whatever is left?

Plain-English summary

The Committee considered two fee arrangements for representing a client charged with a Class C misdemeanor traffic offense punishable by a fine of up to $200. In the first, the lawyer charged a fixed total covering the maximum possible fine plus a smaller additional amount, agreeing to pay any fine from that total and keep the rest, with no further charge and no refund regardless of outcome. In the second, the lawyer charged a fixed amount less than the maximum fine, agreeing to pay any fine (covering any deficiency from his own funds) and keep any excess, again with no further charge and no refund.

The Committee applied DR 2-106(C), which bars a lawyer from charging a contingent fee for representing a defendant in a criminal case. Although the total charged was fixed and known up front, the amount the lawyer actually netted (and, under the second arrangement, the potential for a loss) turned entirely on the outcome: a dismissal or acquittal left the full amount as fee, while a fine reduced or eliminated it. The Committee concluded the fee in both situations depended on the result and clearly appeared to violate DR 2-106(C).

The Committee identified a further problem under DR 5-101(A): the conflict, or reasonable possibility of one, between the client's best interests and the lawyer's personal financial interests, since the lawyer might be drawn toward plea bargaining for a reduced fine rather than contesting the charge even where contesting could serve the client. It noted that neither arrangement showed the client's consent after full disclosure, which would require explaining the circumstances that could pull the lawyer toward a reduced fine. The Committee concluded an attorney may not properly enter into either arrangement, by a 9-0 vote.

Currency note

This opinion was issued in 1986, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules on fees and conflicts are Rules 1.04 and 1.06, with closest ABA analogs Model Rule 1.5 (including the bar on contingent fees in criminal cases) and Model Rule 1.7. Subsequent rule changes 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: Can a lawyer charge a flat fee that absorbs the client's fine?

A: Per the opinion, no, not in the form presented. The Committee concluded that because the lawyer's net fee rises or falls with the fine imposed, the arrangement is a contingent fee in a criminal case prohibited by DR 2-106(C).

Q: Why is it treated as a contingent fee if the total is fixed?

A: The Committee reasoned that even though the client's total payment is fixed, the amount the lawyer keeps depends on the outcome, so the fee itself is contingent on the result and the effectiveness of the representation.

Q: What was the conflict concern?

A: Under DR 5-101(A), the Committee found the arrangement could pull the lawyer toward plea bargaining for a reduced fine to protect his own fee, rather than contesting the charge when that could serve the client, and no disclosed consent was shown.

Background and rules framework

The opinion interprets DR 2-106(C) of the former Texas Code of Professional Responsibility (no contingent fee for a defendant in a criminal case) and DR 5-101(A) (declining employment where the lawyer's professional judgment may be affected by his own financial interest, absent consent after full disclosure). The closest current concepts are Texas Rules 1.04 and 1.06 and Model Rules 1.5 and 1.7. The analysis turns on the lawyer's net fee being tied to the outcome.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees; prohibition on contingent fees in criminal cases)
• MR 1.7 (conflicts; personal-interest conflicts)
• DR 2-106(C), DR 5-101(A), Texas Code of Professional Responsibility

See also

• TX Ethics Op. 485: Contingent Fee for Child Support Arrearage Collection
• TX Ethics Op. 449: Acquiring an Interest in Disputed Property as Fee Security

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-433/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_433.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Situation One:
Attorney agrees with a client who is charged with a Class C misdemeanor traffic offense, punishable only by fine not to exceed $200 to charge a certain amount. The total amount charged includes the maximum amount of the fine potentially assessable under the law and a smaller amount in addition thereto. The arrangement provides that, in the event a fine is imposed against the client, it shall be paid by the attorney from the total monies charged the client by the attorney. The remaining balance of such monies received from the client shall be kept by attorney as fee for representation of the client. No additional charge shall be made to client, and no refund shall be payable, regardless of the outcome of the case. May an attorney properly enter into such an agreement.

Situation Two:
Attorney agrees with a client who is charged with a Class C misdemeanor traffic offense, punishable by fine not to exceed $200 to charge a certain amount. The amount is less than the maximum potential fine assessable under the law, with the arrangement that, in the event a fine is imposed against client, such fine shall be paid by the attorney from the monies charged client by attorney. It is agreed that any deficiency between the amount received from client and the total amount of the assessed fine will be payable by attorney from his own funds. In the event the fine assessed is equal to or less than the amount received from client, then the attorney shall keep such excess as fee for his representation of client. No additional charge shall be made to the client, and no refund shall be payable, regardless of the outcome of the case. May an attorney properly enter into such an agreement?

DISCUSSION

Disciplinary Rule ("DR") 2-106(C) provides that a lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.

Under both of the above factual situations, the total amount of money charged to and payable by the client is known and fixed at the time the attorney is hired. However, the amount of money netted by the attorney as fee (under Fact Situation One), and the amount of money netted, if any, by the attorney as fee (under Fact Situation Two), as well as the potential for loss, or negative fee result (under Fact Situation Two) are all dependent upon the outcome of the traffic violation charge and the results of the representation by attorney. If the charge is dismissed, or if the client is acquitted, the attorney would receive a "net fee" equal to the full amount paid by client. If, however, a fine is imposed, the "net fee" would be reduced, possibly to zero or even result in a negative figure (under Fact Situation Two) depending under both fact situations on the amount of the fine assessed. In either event, the amount of the fee of the attorney is dependent upon the results or outcome of the case and the effectiveness of representation by the attorney.

In both of the above fact situations, the "fee arrangement" clearly appears to be violative of DR 2-106(C).

An additional vice under both fact situations, although potentially magnified in Fact Situation Two, is the conflict, or at least the reasonable possibility thereof, between the best interests of the client and the personal financial interests of the attorney. DR 5-101(A) provides that, except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests. It might be argued, under both of the above fact situations, that client manifestly understood what the attorney charged, and that after paying, the money was gone and would not be refunded. Also, that client would owe no additional amount regardless of the fine assessed, and the client thereby, at least impliedly, consented. Neither of the fact situations stated above indicate that any consent of client to the arrangement with attorney was made after full disclosure. The full disclosure prerequisite to an informed consent by client would seem to require an explanation of the circumstances which could influence the attorney toward plea bargaining for a reduced fine, rather than electing to run the risks of contesting the traffic offense charge contesting the offense might result in an increased fine, and, automatically thereby, a reduced or eliminated "fee" for the attorney, even in circumstances when the client's best interests could be served by resisting the charged offense.

CONCLUSION

An attorney may not properly enter into an agreement with a client who is charged with a Class C misdemeanor traffic offense, punishable only by fine not to exceed $200 to charge a certain amount, which total includes the maximum amount of the fine potentially assessable under the law, plus a smaller amount in addition thereto. The arrangement cannot provide that, in the event a fine is imposed against client, such fine shall be paid by the attorney from the total monies charged the client, and the remaining balance of such monies received from client be kept by attorney as fee with no additional charge made to client, and no refund payable to him, regardless of the outcome of the case.
An attorney may not properly enter into an agreement with a client who is charged with a Class C misdemeanor traffic offense, punishable by fine not to exceed $200, to charge a certain amount which amount is less than the maximum potential fine assessable under the law, with the arrangement providing that, in the event a fine is imposed against client, such fine shall be paid by the attorney from the monies charged client by attorney, with any deficiency between the amount received from client and the total amount of the assessed fine to be payable by attorney from his own funds, and in the event the fine assessed is equal to or less than the amount received from client, then the attorney shall keep such excess over the fine, if any, as fee for his representation of client, and no additional charge shall be made to client and no refund shall be payable to him, regardless of the outcome of the case. (9-0 vote)

Tex. Comm. On Professional Ethics, Op. 433 (1986)