New Jersey is the most urbanized state, so there are lots of "moving violations" - and towns through which major highways pass depend on their municipal courts as profit centers. So it is not surprising that recipients of traffic summonses are soon recipients of a post card or letter from a lawyer offering representation. One such lawyer is Jeremy Bhatt of Jersey City who advertises
"If we cannot reduce or eliminate your points or charges, we provide a full refund of the legal fees. We are confident we can help you."
`Overcharging' is so widespread that it is unlikely that Bhatt ever had to refund a fee. But now the state Supreme Court's Advisory Committee on Professional Ethics has barred the practice, even in quasi-criminal cases like traffic violations. The Committee "recognizes that this potential conflict does not present itself in all matters heard in municipal court. For example, in motor vehicle cases, the interests of the attorney and the client are aligned. Many clients do not seek a full acquittal of motor vehicle charges and expect the attorney to negotiate an agreement imposing a lesser sanction than that of the original charged offense."
But now in Opinion 717 which binds the state's Ethics Committees unless reversed by the state Supreme Court - the ACPE finds that the flat prohibition of contingent fees in criminal matters RPC 1.5(d)(2) applies even to traffic matters because such matters are considered quasi-criminal and
“In quasi-criminal matters, basic rights of criminal defendants are protected and certain principles of criminal procedure are followed, such as the burden of proof beyond a reasonable doubt, presentment in the name of the State, prohibition against double jeopardy, and the like.”
The Committee however,
"recognizes that the potential conflict addressed by RPC 1.5(d)(2) is not present in many municipal court matters and the Rule may be fairly criticized as overbroad. Accordingly, the Committee has invited the Supreme Court, in its administrative capacity, to evaluate this Rule and consider whether a revision would be appropriate. "
Opinion 717 cites Pamela Karlan's observation that
“ If an attorney gets paid only if she obtains an outright acquittal or dismissal of all charges, she may experience a conflict of interest when faced with a plea bargain: her client might be better off pleading guilty to reduced charges, but the lawyer will lose her fee if he does. Similarly, at trial, if the attorney asks for instructions on lesser-included offenses, her client may avoid conviction on the top count, but again she will lose her fee.” [Karlan, P., Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595, 611 (April 1993)].
But it does not embrace her conclusion. Indeed it could hardly do so, even if so inclined, given its narrow jurisdiction as interpreter of the Rules of Professional Conduct. But the article by Professor Karlan cited in the Committee’s memo goes on to argue:
“[T]he contingent fee provides the flip side to the danger of compromised representation in flat-fee cases. There, the attorney faces an incentive to pressure her client into an early plea even when it is not in his best interest. Here, by contrast, she faces an incentive to pressure her client into going to trial and gambling on an outright acquittal even when it is not in his best interest. Again, there is nothing uniquely disadvantageous about a contingent fee; if the perverse incentive created by flat fees fails to justify a per se ban, then it is hard to see why the perverse incentive created by contingent fees justifies one.
Moreover, it is entirely possible to imagine contingent-fee arrangements that do not increase the danger of compromised representation. For example, a client might agree to provide his lawyer with a bonus if charges are dismissed prior to indictment, if he is not convicted on the top count, or if he receives a non-jail sentence. Contingent bonuses thus can serve to combat the countervailing incentive flat fees might otherwise create.”
The value most jeopardized by the RPC 1.5 (d) prohibition on contingent fees in criminal cases is client autonomy. The late Professor Fred Zacharias addressed the prohibition skeptically. He wrote:
“It is difficult to understand why these [contingent fee] arrangements warrant bright-line prohibitions more than others in which lawyer and client interests potentially compete. The consequences of unwise client choices in [e.g. criminal cases] are similar to the consequences of standard contingency arrangements. If the code drafters' fear is that clients are less likely or less able to comprehend the lawyers' incentives in these areas, less intrusive mechanisms exist for assuring reasonable client choices. For example, the codes could address the potential conflicts directly, regulate warnings the lawyers must provide and the influence lawyers may exert, or limit the prohibitions to especially unreasonable arrangements. The rules' blanket bans seem unnecessarily broad.” [Fred C. Zacharias, Limits on Client Autonomy in Legal Ethics Regulation, 81 Boston University Law Review 199 (2001)]
There will certainly be no hue and cry to overturn the ban, particularly since the bar generally is skeptical of such advertising appeals as undignified or worse, as the New Jersey Law Journal's account shows. But the issue has long smoldered.
Why, after all, should a defendant charged with a crime not be free to contract to make value based billing agreements? And isn't it the case that a lawyer who has been paid in full has as great a potential conflict of interest - to end the case early - as does a lawyer whose fee will be enhanced by a favorable result at trial?
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, for example, taking a case to trial instead of negotiating a plea or settlement for a client that would perhaps better serve the client's interest. 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 limit clients in what options they have for 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.
ReplyDeleteA more intrusive solution, but still better than an outright ban, could require contingent fee arrangements 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.
The real problem is that the advertising is deceptive because of the absence of public knowledge of routine overcharging. Routine overcharging is a more serious affront to due process than borderline-deceptive advertising. The bar should first discipline the prosecutors who file charges without probable cause.
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