Ethics Opinion 384
Restrictions on Accepting a Legal Fee For Benefit of Certain Incarcerated Persons Before Notifying Prior Counsel of Record
This Opinion addresses the limits, under Rule 7.1(f) of the D.C. Rules of Professional Conduct ("D.C. Rules” or “Rules”), on a successor counsel's ability to accept a legal fee from (or on behalf of) certain criminal defendants and detained youth who are incarcerated in District of Columbia correctional or juvenile detention facilities.
Rule 7.1(f) was added to the D.C. Rules in 2007 at the behest of the Public Defender Service and U.S. Attorney's Office, to protect already-represented incarcerated persons from lawyers who solicit fee-paying engagements based on unrealistic promises of success.1 Rule 7.1(f) imposes specific notification obligations on a successor counsel before the successor may accept a legal fee from (or on behalf of) the incarcerated client. Rule 7.1(f) provides:
- Any lawyer or person acting on behalf of a lawyer who solicits or invites or seeks to solicit any person incarcerated at the District of Columbia Jail, the Correctional Treatment Facility or any District of Columbia juvenile detention facility for the purpose of representing that person for a fee paid by or on behalf of that person or under the Criminal Justice Act, D.C. Code Ann. §11-2601 (2001) et seq., in any then-pending criminal case in which that person is represented, must provide timely and adequate notice to the person’s then-current lawyer prior to accepting any fee from or on behalf of the incarcerated person.
Nowhere does Rule 7.1(f) define what "accepting any fee" or "timely and adequate notice" means. Other D.C. Rules inform us (i) that a lawyer's fees must be reasonable (Rule 1.5(a)); (ii) special disclosures and consents are required when a family member or other third-party seeks to pay the client's legal bill (Rule 1.8(e)2); and (iii) prepaid flat fees are never earned on receipt (Rule 1.15(e)3).
This Committee is mindful that criminal defense attorneys often require payment in full of prepaid flat fees (or a substantial deposit towards total expected hourly fees) before the defense attorney will commit to entering an appearance. Rule 7.1(f) could be read as requiring a successor counsel to defer receipt of fees until entering an appearance. Such a reading, however, would make it difficult for incarcerated persons to exercise their absolute right to change counsel. We therefore conclude that nothing in Rule 7.1(f) prohibits successor counsel from receiving payment of a fee into the lawyer's trust account pending "timely" service and filing of a notice of an appearance or motion to substitute.
As to what constitutes "timely and adequate notice," we note that Rule 112 of the D.C. Superior Court's Rules of Criminal Procedure currently requires a notice of appearance "within 3 days of appointment or retention." Criminal Procedure Rule 49 further requires that such notice be served upon the party’s attorney. Although violation of a court procedure does not always constitute an ethics violation, we conclude that service and filing of an entry of appearance that conforms to Criminal Procedure Rules 49 and 112 is consistent with a lawyer's duties under Rule 7.1(f) to (i) protect client interests and (ii) avoid wasting resources of prior counsel and the court.
Published: August 2022
1. The legislative history to Rule 7.1(f) appears at page 179 of the Rules of Professional Conduct Review Committee’s Proposed Amendments to the District of Columbia Rules of Professional Conduct Final Report and Recommendations (June 21, 2005) found at https://www.dcbar.org/about/who-we-are/reports/rules-of-professional-conduct-review-committee/rules-of-professional-conduct-review-committee.
2. Rule 1.8 (e) states: "A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent after consultation; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by [the confidentiality restrictions of] Rule 1.6.”
3. Under Rule 1.15(e), a client's prepaid fees, including prepaid flat fees, belong to the client and must remain in trust until the lawyer completes the associated work unless the client has given informed consent to a different arrangement. In re Mance, 980 A.2d 1196 (D.C. 2009). Informed consent generally cannot be obtained without first informing the client of the risks associated with waiving use of a trust account and that termination of the lawyer-client relationship, prior to completing all work, will entitle the client to a refund of prepaid fees associated with the portion of work not performed. Mance. at 1206-7. See also D.C. Bar LEC Op. 355. Although Rule 1.15(e) provides limited circumstances in which the client may provide informed consent to waive use of a trust account for the client's prepayments, we conclude that such a waiver normally would be inoperable before the lawyer has provided the notice of appearance to prior counsel as required by Criminal Procedure Rules 49 and 112.