Ethics Opinion 262

Application of Rule 1.5(d) to Receipt of a Contingent Fee in a Writ of Error Coram Nobis Proceeding

Rule 1.5(d), prohibiting contingent fees in criminal cases, does not apply to a writ of error coram nobis proceeding. Therefore, a lawyer may accept a contingent fee to represent an individual in such a proceeding.

Applicable Rule

• Rule 1.5(d) (Ban on Contingent Fees for Representing a Defendant in a Criminal Case)

Inquiry

The inquirer, a private lawyer, requests an opinion whether a lawyer may enter into a contingent fee agreement to represent a person, who was previously convicted by a court-martial and has been released, in an effort to have the prior criminal conviction set aside by a writ of error coram nobis. If successful, the individual will be entitled to back pay and allowances from which the lawyer’s contingent fee will be paid.

Discussion

Rule 1.5 provides that a “[a] lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.” Comment [6] to the Rule notes that this provision continues the prohibition imposed under the previous Code of Professional Responsibility. According to Ethical Consideration 2-20 of that Code, “[p]ublic policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee.”

A Writ of Error Coram Nobis (“Writ”) originally was a common law writ brought to correct a judgment that the court would not have made had it known of an error of fact at the time of the original proceeding. The Writ was brought in an independent civil proceeding governed by civil rules.¹ Today, the Writ is the only post-conviction remedy that can be used to vacate a federal conviction after the petitioner has been released from custody. It will be granted only where necessary to correct errors of such a fundamental character as to render the previous court proceeding invalid.² Such errors include a violation of the right to counsel; incompetency of counsel; insanity or incompetency of the petitioner at trial; and a subsequent Supreme Court or appellate decision holding unconstitutional the federal statute under which petitioner was convicted. In other words, the Writ will be granted only where the circumstances compel such action to achieve justice.³

For the reasons discussed below, we conclude that Rule 1.5(d) does not apply to a Writ proceeding. We believe that Rule 1.5(d) is intended to apply to criminal cases in which the government proceeds against a criminal defendant. By comparison, the petition for a Writ is filed by an individual who, after release from custody, claims error in the previous criminal proceeding. The individual is not identified as a defendant, but rather as the petitioner.

Although many reasons have been given for the ban on contingent fees in criminal cases, and the precise rationale is somewhat murky, we find that none of these reasons apply to a Coram Nobis proceeding. One reason often given is that if contingent fees were permitted, lawyers would be less likely to accept less meritorious cases. In a Writ proceeding, however, the concern that lawyers will be discouraged from representing criminal defendants does not apply, since the criminal proceedings are already complete.

A second rationale for the ban was that “legal services in criminal cases do not produce a res with which to pay the fee.”⁴ Even if that rationale were still relevant, we note that the Writ in a court-martial conviction may generate a res (back pay and allowances) from which a fee can be paid. Finally, it is argued that contingent fees are not necessary in criminal cases because there is a constitutional guarantee of counsel for indigent criminal defendants. In a Writ proceeding, however, there is no such right to counsel. Contingent fees thus may enable individuals to secure counsel when they might otherwise lack the necessary financial resources to do so.⁵ and a division among the circuits⁶ have served to muddy the waters in this regard.

But even if the Writ proceeding were deemed to be a criminal proceeding, the petitioner in the proceeding would have to be a “defendant,” in our view, to bring the proposed transaction within Rule 1.5(d). Although he was the defendant in the original criminal case, the Committee believes that, at this stage of the legal proceedings, the coram nobis petitioner is not a “defendant.” As we noted above, Rule 1.5(d), by its terms, applies only to representation of a “defendant in a criminal case.” In our view, the representation of an individual in a Writ proceeding, where the individual allegedly wronged, i.e., the petitioner, initiates the legal action, is plainly not covered by the Rule. Thus, a lawyer may accept a contingent fee in a Writ proceeding.

Inquiry No. 95-3-7
Adopted: November 21, 1995

1. 18 Am. Jur. 2d Coram Nobis § 2 (1985).
2. 38 A.L.R. Fed. 617 § 4(a) (1978).
3. A Writ is an important remedy because of certain negative collateral consequences that result from a conviction, e.g., denial of certain rights (voting, holding office); expulsion from, or denial of access to, certain professions; sentence enhancement for recidivism; and the social and economic stigma of a conviction.
4. EC 2-20, supra.
5. U.S. v. Morgan, 346 U.S. 502 (1954) (Writ available to challenge criminal judgments under the all writs section of the Judicial Code, construing 28 U.S.C. § 1651(a).) The referenced footnote is quoted in relevant part: “Such a motion is a step in the criminal case and not, like habeas corpus where relief is sought in a separate civil proceeding . . . . This motion is of the same general character as one under 28 U.S.C. § 2255.” id. at 505 n.4. (At the time, courts viewed § 2255 motions as civil proceedings.)
6. There has been much litigation in this area because the nature of the proceeding (whether civil or criminal) determines which rules of procedure apply in the federal courts.
  COURTS APPLYING CIVIL RULES: U.S. v. Craig, 907 F.2d 653 (7th Cir. 1990), cert. denied, (1990) (time for appeal); U.S. v. Cooper, 876 F.2d 1192 (5th Cir. 1989) (per curiam) (time for appeal); U.S. v. Balistriere, 606 F.2d 216 (7th Cir. 1979) (discovery); U.S. v. Keough, 391 F.2d 138 (2d Cir. 1968) (time for appeal).
  COURTS APPLYING CRIMINAL RULES: Yasui v. U.S., 772 F.2d 1496 (9th Cir. 1985) (time for appeal); U.S. v. Mills, 430 F.2d 526 (8th Cir. 1970) (time for appeal).