Why Can’t Attorneys Guarantee Results in Criminal Cases?
Choosing the right attorney to defend against a pending criminal charge may be one of the most important decisions you’ll ever need to make. Hiring a good attorney is also very expensive. Most expensive goods and services are available with some sort of warranty, so why can’t criminal defense attorneys guarantee results?
If you’ve shopped around then you’ve probably spoken to lawyers who made educated guesses about what will happen in your case based on past experience with similar cases in the same jurisdiction. You may also have noticed that most of them are unwilling to guarantee that they’ll get a criminal charge dismissed, even when they strongly believe that’s what will happen. If you asked them for a guarantee, you probably heard that “no attorney can (ethically) guarantee a particular result,” that there are “too many variables,” that “every case is different” and so on.
Those statements are all true but they are also all true in other areas of law, e.g., personal injury cases, where lawyers DO offer guarantees. What’s different about criminal law?
Contingent Fees Are Forbidden in Criminal Cases
A contingent fee (aka “contingency fee” or “conditional fee”) is a fee that depends on a favorable result in a case. A simple example would be a lawyer promising to refund her fee if she doesn’t succeed in getting a criminal case dismissed. Texas lawyers are prohibited from making such guarantees in criminal cases by Rule 1.04(e) of the Rules of Professional Conduct:
TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT
I. CLIENT-LAWYER RELATIONSHIP
Rule 1.04 Fees
(e) A lawyer shall not enter into an arrangement for, charge, or collect
a contingent fee for representing a defendant in a criminal case.
Texas is not unique in this regard. Most other states have a similar rule that forbids attorneys from guaranteeing results in criminal cases. Believe it or not, the purpose of these rules is to protect consumers from unethical attorneys.
How Does Rule 1.04(e) Protect Consumers?
Why would a drought-stricken farmer pay a shyster good money to do a rain dance? Out of desperation. Similar dynamics apply here. People facing serious criminal charges often feel a level of anxiety that leaves them vulnerable to being scammed. They are desperate for a savior and willing to pay (anything in some cases) for an attorney’s promise to make it go away. Unfortunately, unethical attorneys are willing to take advantage of that desperation by making promises that they can’t possibly keep.
Rule 1.04(e) protects consumers by prohibiting lawyers from making promises that they don’t actually have the power to keep, such as whether a criminal case is ultimately dismissed, just to get hired on a case.
Wouldn’t a Contingent Fee Motivate an Attorney
To Obtain a Favorable Result for the Consumer?
Not necessarily. In the real world, each lawyer represents multiple clients and has many demands competing for her time and attention. An attorney has an ethical duty to diligently represent each and every one of her clients but being diligent and prepared in every case is not always easy.
Now consider that an attorney’s fee is significantly higher for some cases than for others based on various factors. For example, the attorney might have one client that paid $20,000 for representation in a felony case while another client paid $6,000 for a misdemeanor. If contingent fees were allowed, there would be an obvious financial incentive to neglect lower-paying cases in favor of those with higher fees.
Even worse, contingent fees could make it profitable for an unethical defense attorney to conspire with an unethical prosecutor to sacrifice the interests of lower paying clients to gain favorable results for higher-paying clients. The prohibition on guaranteed results removes that inappropriate incentive.
What’s Wrong With Hiring An Unethical Attorney?
A lawyer who violates the rules of ethics does it to help herself, not her clients.
Beware the criminal defense attorney who claims that you will get special treatment as her client because she has a special relationship with a judge or prosecutor. That is highly unethical conduct and is probably dishonest as well. It is much more likely that the attorney is lying to convince you to hire her. Chances are that such an attorney will wait until later (when you are no longer in a good position to hire a different attorney) to offer a pat excuse for failing to deliver. If you complain, she will claim that that you misunderstood or even that you are lying.
In some situations, hiring an unethical attorney may seem like the best way to “win” a case, but that route is actually more likely to result in you getting burned than in you achieving a better outcome for your case. Most attorneys–even unethical ones–are unwilling to risk their law licenses to obtain better results for their clients.
You need to be able to trust that your attorney is being honest with you if she says you have a good chance of winning at trial. An unethical attorney may have a hidden agenda, such as getting you to pay an additional fee to try your case. Likewise, if your attorney recommends that you accept a plea bargain offer, you need to be confident that she isn’t acting out of self-interest, such as avoiding the hard work and diligent preparation that may be necessary to get a better result.
In other words, there will probably come a time during the representation when, unbeknownst to you, your interests and those of your attorney are not perfectly aligned. When that happens, the unethical attorney will act in her own best interest rather than yours.
As ethical lawyers, we cannot promise a specific result in any case but we can and do give our clients honest, educated opinions about the most likely results in their cases. We believe that the only way to consistently get great results is to diligently prepare each and every case. We intentionally handle a smaller number of cases per attorney so that we can give each case the time and attention to detail that our clients expect and deserve.
When you hire our firm, we will work hard to ensure the best possible outcome in your case. We will keep you informed of important developments in your case, answer your questions, and make sure that you have the information you need to make good decisions. We will look for defenses and problems with the government’s case against you. We will ultimately know more about the case than the prosecutors do and will use every advantage to defend you and protect your future.
Isn’t It Unethical to Defend Someone Who Is Guilty?
Absolutely not. It is actually unethical for a lawyer to be less diligent in representing a client because the lawyer believes the client is guilty.
People often use “ethics” and “morals” interchangeably in everyday conversation. Both words are related to concepts of right and wrong but they have different meanings in the context of a lawyer’s conduct. Professional ethics, as discussed above, are dictated by a single set of rules that governs the professional conduct of all Texas lawyers.
Morals, on the other hand, are personal principals that are unique to an individual and guide his or her behavior in all spheres, both personal and professional. I wrote an article for my blog a few years ago that contains an explanation of why I am not even remotely troubled by representing a person who is guilty as charged.