Should NJ relax the rule against contingency fees in criminal and quasi-criminal matters?

George Conk takes a look at the issue.

Comments

[Law school grad]

In a certain sense, any billing arrangement can create conflicting incentives for the attorney and client. Billing by the hour gives the attorney an incentive to make the proceedings take longer, especially if the attorney or firm is short on work. For example, hourly billing encourages taking a case to trial instead of negotiating a plea or settlement for a client.

Likewise, this blog post does a good job of pointing out that common flat fee arrangements create the perverse incentive - the lawyer would rather take a plea or settlement. I think the ultimate solution is not to broadly restrict clients in how they negotiate their billing arrangements, but rather to perhaps mandate the attorney provide certain types of warnings and suggestions to the client. This information could be a standardized form or brochure that attorneys would be required to provide to their clients.

A more intrusive solution, but still better than an outright ban, could require contingent fee arrangements in criminal defense cases to ensure the attorney gets some lesser fee for negotiating a settlement. That fee would ensure the attorney still has an incentive to negotiate pleas when they serve the best interests of the client.

[Monroe Freedman]

Fees contingent on success can be more important in criminal cases, because the client who loses and goes to prison is unable to work and therefore less likely to be able to pay the fee.

The reason that I have heard for the ban is a distrust of criminal defense lawyers; the notion is that if the lawyer gets paid only for winning, the criminal defense lawyer will be more likely to engage in unethical tactics.