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), 禁止刑事案件中的或有费用, 不适用于错误令状或诉讼程序. 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. 根据《澳博app》第2-20条, “[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 用来支付费用.”

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

基于下面讨论的原因，我们得出结论:规则1.第5(d)条不适用于令状程序. 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, 令状的请愿书是由一个人提出的，他, 获释后, 先前刑事诉讼中的索赔错误. 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, 而其确切的原理有些模糊, we find that none of these reasons apply to a Coram Nobis proceeding. One reason often given is that if contingent fees were permitted, 澳博app不太可能接受不那么有价值的案件. In a Writ proceeding, however, the concern that lawyers will be discouraged from representing criminal defendants does not apply, 因为刑事诉讼已经完成.

A second rationale for the ban was that “legal services in criminal cases do not produce a res 用来支付费用.”⁴ 即使这个理论仍然适用, 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 还有电路之间的划分⁶ 在这方面起到了搅浑水的作用吗.

But even if the Writ proceeding were deemed to be a criminal proceeding, 诉讼中的请愿人必须是“被告”,” in our view, 使拟议的交易符合规则1.5(d). 虽然他是原案的被告, 委员会认为, 在法律程序的这个阶段, the coram nobis 请愿人不是“被告”.“正如我们上面提到的，规则1.5(d), by its terms, applies only to representation of a “defendant in a criminal case.” In our view, 个人在令状诉讼中的代表, 这个人被指控在哪里受了委屈, 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
通过:1995年11月21日

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., 剥夺某些权利(投票权, holding office); expulsion from, 或者拒绝进入, 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 . . . . 这一动议的一般性质与欧盟28个成员国以下的动议相同.S.C. § 2255.” id. at 505 n.4. (当时，法院将第2255条动议视为民事诉讼.)
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.
  适用民事规则的法院:美国.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. (上诉时间).
  适用刑事规则的法院:Yasui诉. U.S., 772 F.2d 1496 (9th Cir. 1985) (time for appeal); U.S. v. Mills, 430 F.2d 526 (8th Cir. (上诉时间).