Can a lawyer take a contingent fee to defend a client's property in a civil forfeiture case while also representing that client on the related criminal charges?

Plain-English summary

The inquiry asked whether a lawyer could represent a client in a civil forfeiture proceeding on a contingent fee, where the lawyer also represented the client on related criminal charges. The committee analyzed three points.

First, it concluded that RPC 1.5(d)(2), which prohibits contingent fees in criminal cases, would not bar a contingent fee in the civil forfeiture proceeding, because a civil forfeiture proceeding is not a criminal proceeding, even when criminal charges are related. Second, reviewing the particular agreement, the committee found it inartfully drawn and observed that any such agreement must comply with the requirements of RPC 1.5(a), (b), and (c). Third, on what a lawyer must do when a client directs the lawyer not to disclose the fee agreement, the committee pointed to Seventh Elect Church v. Rogers and noted that RPC 1.6(b) provides a lawyer cannot reveal client secrets without a court order.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does the ban on criminal contingent fees apply to a civil forfeiture case?

A: Under this 1987 opinion, no. The committee concluded RPC 1.5(d)(2) did not reach a civil forfeiture proceeding because it is not a criminal proceeding, even where related criminal charges exist.

Q: Does a related criminal case change the answer?

A: No. The committee said the contingent fee was permissible even if the lawyer was also representing the client on related criminal charges, because the forfeiture proceeding itself is civil.

Q: What did the committee say about a client telling the lawyer not to disclose the fee agreement?

A: It pointed to Seventh Elect Church v. Rogers and to RPC 1.6(b), under which a lawyer cannot reveal client secrets without a court order.

Background and rules framework

RPC 1.5 (Washington's version of ABA Model Rule 1.5) governs fees, and RPC 1.5(d)(2) prohibits contingent fees in criminal cases. RPC 1.6(b) (Model Rule 1.6) concerns disclosure of client confidences. The committee applied RPC 1.5(d)(2) to distinguish a civil forfeiture proceeding from a criminal case, required compliance with RPC 1.5(a), (b), and (c), and applied RPC 1.6(b) to a client's direction not to disclose the fee agreement.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees; contingent fee limits, including criminal cases)
• ABA Model Rule 1.6 (confidentiality of information)
• Washington RPC 1.5(d)(2), 1.5(a), (b), (c), and RPC 1.6(b)

Cases:

• Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (1984), on what a lawyer must do when a client directs nondisclosure of the fee agreement

See also

• WA Ethics Op. 1024: A Contingent Fee for Collection Work
• ABA Formal Op. 94-389: Contingent Fees
• CA Op. 1983-72: Contingent Fees in Divorce Cases

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=136

Original opinion text

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

The Committee was of the opinion that RPC 1.5(d)(2) would not prohibit you from undertaking to represent a client in a civil forfeiture proceeding on a contingent fee basis, even if you were also representing that client on related criminal charges, since the civil forfeiture proceeding is not a criminal proceeding. In reviewing the particular contingent fee agreement, the Committee was of the opinion that it was inartfully drawn and that any such agreement must comply with the requirements of RPC 1.5(a), (b) and (c). Lastly, the Committee was of the opinion that the case of Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (1984) resolves the question of what a lawyer must do when a client directs the lawyer not to disclose the fee agreement, and notes that RPC 1.6(b) provides that a lawyer cannot reveal client secrets without a court order.