Is there a conflict of interest for a criminal defense lawyer to work for a contingency fee?

I don't know if it is a conflict of interest, but I was taught in law school that it was not considered ethical by the Bar.

Such representation arrangements are prohibited. Tex. Disp. R. Proc. C. 1.04(e).

OK, so does that mean a lawyer may not take a contingency fee that seeks a percentage of any payment that might come from the State should an inmate be found innocent?

Sure seems like that would put the lawyer in an unconscionable position of pushing the evidence in a direction that might not be supported, simply in the interest of pursuing the money over the best outcome for the inmate.

For example, if the lawyer pushed for DNA testing as an all-or-nothing position vs. settling for a reversal and new plea agreement for guilt, wouldn't he be motivated by the money behind door number 1?

Ok, this one is complicated. Under this rule, a lawyer could not represent someone in a writ of habeas corpus or Chapter 46 DNA proceeding in exchange for a contingent fee stemming from an award of damages from the State. Period.

But, the damages themselves are not the end result of the criminal action--they are the result of a claim or a civil lawsuit brought under the Civil Practices and Remedies Code, and thus Rule 1.04(e) would not bar a contingent fee for this type of representation.

A perhaps harder question for such a lawyer would be whether charging a contingent fee for such a claim is barred as unconscionable under Rule 1.04(a). Especially since, in a case of innocence, the State often provides every single document needed to make an uncontested claim to the Comptroller. A lawyer would not be able to claim the criminal litigation as a basis for supporting the contingent fee since that would run afoul of Rule 1.04(e). If the compensation claim were contested, however, then probably not an issue.

Whadya think?

What would you say if lawyer took a contingency fee payment to get a dismissal changed to qualify for compensation?

The order of dismissal relates directly to a criminal case. No contingent fee allowed.

No one believes that a lawyer providing legal work for one of these individuals should not be compensated. The DNA statute allows for appointed counsel, and courts have the discretion to appoint and pay counsel under 11.071. The legislature could provide for attorney's fees or whatever in the Civil Practices and Remedies Code where the proceedings for this type of claim are codified. But, taking on criminal litigation for the expectation of a cut of the defendant's compensation award seems to me to violate long established ethical rules. Its especially problematic, I think, where the amount of compensation is statutory, and thus cannot be "adjusted" by the fact finder to allow for the contingent fee. I guess civil juries might do that...

quote:

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Originally posted by JB:
Is there a conflict of interest for a criminal defense lawyer to work for a contingency fee?

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Someone apparently thinks it's a problem ...

HB 417

Hmm, author is a member of the Dallas delegation.

The State Bar of Texas is suing an attorney who collected millions of dollars from wrongly convicted ex-inmates, alleging his fees were illegal and unconscionable.

web page

I wonder if the Ethic Commission has any interest in that as well. He lobbied the Legislature for a change, and lobbyists cannot work on a contingency basis, either. But I don't know enough about the facts to say what really happened.