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.
- Rule 1.5(d) (Ban on Contingent Fees for Representing a Defendant
in a Criminal Case)
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.
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  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
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
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.
Whether a Writ proceeding is a civil or criminal
proceeding has not been clearly decided. A confusing footnote to a Supreme
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
- Am. Jur. 2d Coram Nobis § 2 (1985).
- A.L.R. Fed. 617 § 4(a) (1978).
- 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.
- EC 2-20, supra.
- 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.)
- 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).