If I get injured in a car wreck, my attorney only gets paid if he wins the case for me. Why can’t I pay my North Carolina criminal defense lawyer the same way, with a contingency fee?

You won’t find any attorney in the state who works that way. The ethical rules of the North Carolina State Bar forbid contingency fees for North Carolina criminal defense attorneys. There is a very narrow exception for criminal asset forfeiture cases.

Because a lawyer cannot practice his profession without the approval of the State Bar, we would have to follow this rule even if we disagreed with it.

In fact, we do agree with it. Contingency fees would be harmful to criminal cases.

A brief review: what is a contingency fee?

Typically, for personal injury cases, an attorney will not charge the client any fee for his services at the start. However, when the case ends because the client accepts a settlement offer or a jury delivers an award for damages, the lawyer will collect a portion of the total amount. At the outset, both the client and the lawyer agree what that portion shall be. It’s usually set at 30 to 40 percent of the total recovery.

This is called a contingency fee because the amount the lawyer gets is contingent upon—or depends on—the amount of the settlement. If the case goes to the jury and the jury sides with the defendant, then the attorney gets nothing.

In contrast, billing for criminal defense attorneys is usually based both on a fixed fee schedule for some procedures and an hourly rate for other types of work. At your initial consultation with your North Carolina criminal defense lawyer, he should explain in detail his law firm’s billing procedures. The client is expected to pay in advance for the lawyer’s services.

Justifying the ethical rules

We can’t be perfectly sure about what persuaded the state bar adopted this ethical rule. However, it’s not too hard to come up with some reasonable explanations for why contingency fees in North Carolina criminal law might be harmful to the client and to the justice system.

  • There’s no money to base the fee on. A civil case has a final cash value, the settlement amount or the damage award. In most criminal trials, no money is transferred from the loser to the winner, so there is no way to calculate a contingency fee.
  • A criminal case is not voluntary. In civil lawsuits, the client has voluntary control; he doesn’t have to file a lawsuit if he has been injured, but may do so if that will advance his interests. The lawyer in this instance has a voluntary choice too: if the personal injury attorney thinks a car accident suit cannot win, he can refuse to take on that client rather than risk doing a lot of work but collecting no fee. In contrast, a person has no choice about going to court if she has been accused of a criminal offense: the government makes the decision. She is entitled to legal representation, so a lawyer cannot ethically refuse to defend her even if he thinks you she be convicted. Attorneys will typically charge a fixed fee for criminal defense because they are ethically bound to work for anyone who wants to hire them for that fee.
  • Contingency fees in criminal cases could destabilize the justice system, especially with regard to plea bargains. If the defense lawyer has a financial interest in a criminal case, he might broker a plea deal even when he thought he could win at trial, just to guarantee a fee for a lesser charge (and to avoid the risk of no payment for losing outright). Indeed, defense attorneys would be so fearful of losing at trial that prosecutors could grossly overcharge defendants, knowing that any plea offer would likely be accepted. But some lawyers, confident of their skills, will be willing to bet they can sway the jury even with a weak case: they may go to trial in the hopes of winning their contingency fees, even when the prudent course would be to negotiate a plea deal.

Contact Speaks Law Firm for ethical criminal defense in Wilmington

No North Carolina law firm takes its ethical obligations more seriously than our team. We are absolutely committed to seeking the best possible result for our clients. Call us today at 910-341-7570 or toll-free at 877-593-4233 if you are facing felony or misdemeanor charges, and let us explain how we can give you the effective and experienced legal representation you need.

R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.