In case of first impression, Kentucky Supreme Court to decide whether fee arrangement violates rule vs contingency fees in criminal defense cases

Tomorrow, the Kentucky Supreme Court will hear an interesting case that asks the court to determine whether an attorney entered into an invalid fee agreement and a conflict of interest when representing a criminal defendant.

In this case, the defendant was accused of murdering his adoptive father.  Because he did not have money to pay for his representation, the attorney agreed to represent him for a fee based on assets from the defendant's family’s 160-acre farm, which the defendant was due to inherit.  The problem, though, is that under Kentucky law, you can’t inherit property from someone you are convicted of killing which meant the attorney could only collect her fee if she was able to secure an acquittal.

Does this make the agreement a contingency fee, which is banned by the rules of professional conduct in criminal defense cases?

Yes, according to a disciplinary hearing officer.  One reason the rules ban contingency fees in criminal defense cases is to avoid circumstances in which the lawyer — needing an acquittal to win a fee — would urge a client to reject a guilty plea bargain that would be in the best interest of the client.  And, according to the disciplinary officer, this is precisely what happened in this case. Apparently, a prosecutor offered a good deal to the defendant but the attorney didn’t advise him to take it.

Interestingly, however, the Kentucky Bar Association’s board of governors reversed most of the findings of the hearing officer and unanimously exonerated the attorney from the alleged violation of the contingent-fee rule.

The Kentucky Supreme Court could reinstate any of the charges or none of them. It is the first case in which the court has ever considered a violation of the contingent contract rule in criminal cases.

You can read a detailed report on the case here.