Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorneys' Fee in Criminal Cases

Abstract

The disciplinary rules of every state prohibit attorneys from charging "unreasonable" fees. These provisions, however; are virtually never enforced; virtually all instances where the rules are invoked involve independent forms of dishonesty or misconduct. The only two cases in which attorneys have been disciplined solely based on the size of the fee involved "blue-chip" civil attorneys who represented working-class defendants in criminal matters. In both cases, the rationale for discipline was questionable; the clients were completely exonerated of criminal charges and the fees would have been unexceptional in elite civil practice. These disciplinary prosecutions were particularly doubtful because the Sixth Amendment right to counsel of choice prohibits the government from limiting the amount of money criminal defendants can pay their lawyers. The reasonable fee rules are either unenforced or questionably enforced because they are not designed to limit lawyer's fees or incomes per se, but to ensure that lawyers do not take advantage of clients, and that clients understand the nature of the legal services they are buying. The mismatch between the purpose of the rules and their language should be remedied by making clear that lawyers are obligated to talk with their clients about their legal options and offer some estimate of what they might cost. But fees negotiated after appropriate disclosure should not subject an attorney to discipline.