NEGOTIATING FOR FEES TO WHAT EXTENT DOES AN by jolinmilioncherie

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									                                        OS
  NEGOTIATING FOR F E : TO WHAT EXTENT D E AN
                   ES
  ATTORNEY'S FREEDOM TO CONTRACT PROTECT HIM?
     Lawyers, like the general public, have a great deal of freedom to
contract, especially in fee arrangements. This freedom is tempered,
however, by professional codes of ethics designed to protect clients
and attorneys from the appearance of impropriety and the reality of
malpractice suits. Problems arise when the guidelines, which must nec-
essarily be general, are not specific enough to be of assistance to attor-
neys. How much protection can the freedom to enter into contracts
give a lawyer who comes close, but does not actually violate, the letter
of the ethical codes? This comment will view this question in the area
of contingent fees and media rights contracts as fees in criminal cases.



     In a recent case, State v. Lab~nville,~ Supreme Court of New
                                            the
Hampshire was asked to rule on whether a court-appointed attorney
had failed to give effective assistance of counsel because of a fee ar-
rangement the attorney made with his indigent client. The client was
accused of conspiracy to commit first-degree murder of her husband.
When the defendant claimed she was not comfortable with represen-
tation by an attorney from the Public Defender Program, the court ap-
pointed her former attorney to represent her. The attorney and de-
fendant signed a retainer agreement whereby if the defendant was
acquitted of the criminal charge, she would pay the attorney his regular
fee of $85 per hour for out-of-court time and $100 per hour for in-
court time. If the defendant was convicted, the agreement stipulated
the attorney would recover from the state alone at the rate of $20 per
hour for out-of-court time and $30 per hour for in-court time. The par-
ties decided the higher fee for acquittal would come from the pro-
ceeds of two life insurance policies on the client's husband. The de-
fendant was convicted, and the attorney recovered $1,500 from the
state for his services and $900 for expenses. The defendant appealed
on the grounds of ineffective assistance of counsel because her attor-
ney represented her in a criminal matter under a contingent fee ar-

    1. State v. Labonville, 126 N.H. 451, 492 A.2d 1376 (1985).
200                       The Journal of the Legal Profession

rangement.l She claimed the attorney had an economic incentive to go
to trial and had failed to plea bargain effectively for her.3 The state
supreme court, in affirming the conviction, ruled that although contin-
gent fee arrangements in criminal cases were contrary to the Code of
Professional Responsibility for New Hampshire lawyers, it did not follow
that representation under such an arrangement was necessarily ineffec-
tive assistance of counsel under the state con~titution.~
     This case poses interesting ethical questions which this comment
addresses.

                    11.    CANONS
                                OF     ETHICS AND MODEL      RULES
     The American Bar Association Canons of Ethics addresses the issue
of contingent fees generally in Canon Two: "A lawyer should assist the
legal profession in fulfilling its duty to make legal counsel a~ailable."~
     The Canons are general expressions of the standards of profes-
sional conduct expected of lawyer^.^ However, they give only broad
standards of conduct. Ethical considerations which accompany the Ca-
nons provide more specific objectives and goals. "Public policy prop-
erly condemns contingent fee arrangements in criminal cases, largely on
the ground that legal services in criminal cases do not produce a res
with which to pay the fee."' The Disciplinary Rules, on the other hand,
                                                               R
serve as mandatory minimum standards for all attorneys. D 2-106(c)
specifically prohibits a lawyer from entering into a contingent fee ar-
rangement with a criminal defendant.B
     The ABA has accepted a new set of model rules which are being
considered for adoption by various state bars. Rule 1.5(d)(2) states: "A
lawyer shall not enter into an arrangement for, charge, or collect a con-

     2. Id. at 454, 492 A.2d at 1377-78.
     3. The state offered the defendant a prison sentence of four t o eight years if she
pled guilty. The defendant ultimately rejected this offer, went t o trial, and received a
sentence of seven and one-half t o fifteen years. Although testimony differed as to the
advice the attorney gave the defendant about the guilty plea, both parties agreed the
attorney had said he did not believe the judge would accept the recommended lesser
sentence.
     4. Labonville, 126 N.H. at 456, 492 A.2d at 1379.
     5. Model Code of Professional Responsibility Canon T w o (1982) [hereinafter
Model Code].
     6. Code of Professional Responsibility of the Alabama State Bar and the Rules of
Disciplinary Enforcement Preliminary Statement (1974) [hereinafter Alabama Prof.
Code].
     7. Model Code EC 2-20 (1982).
     8. Model Code DR 2-106(c) (1982).
                               Negotiating For Fees                                 201

tingent fee for representing a defendant in a criminal case."O

                            111.   POLICY CONSIDERATIONS

      The public policies behind limiting contingent fee contracts in crimi-
nal cases are simple. "The courts tend to focus on the corrupting ten-
dency of these contracts; attorneys should not have a financial in-
centive to secure" convictions or reduce guilty pleas.lo Given the
restrictions on the types of fee arrangements an attorney can have
with a criminal defendant, the best solution is to demand payment
before legal services are rendered. This procedure not only insures
payment, but also protects a lawyer in a criminal case from a client's
shift in attitude after the trial has ended. For example, if a client is found
innocent, he may refuse to pay his attorney the proper fee, claiming he
was innocent all along and never really needed counsel. If he is con-
victed, he may not pay because he has no money, or because he feels
the attorney did not do an adequate job representing him since he was
not acquitted.ll

                          IV. CONTRACTS PAYMENTS
                                     FOR

     A great deal of litigation has occurred regarding fee contracts be-
tween an attorney and a client. Each party has a great deal of freedom
to contract; the only limitation on the attorney's right to contract is that
his fee must not be excessive.12 The terms of the fee agreement or
contract should be contained in a retainer agreement which the attor-
ney and defendant each sign at the beginning of the lawyer's involve-
ment with the case.13 Usually courts review cases on either constitu-
tional grounds, to determine whether the contract prejudiced the rights
of the defendant, or on contract principles.

     9. Model Rules of Professional Conduct Rule 1.5(d)(2) (1983) [hereinafter Model
Rules].
     10. Aronson, Attorney-Client Fee Arrangements: Regulations and Review, 68 ABA
JOURNAL286 (1982).
     11. 13 AM. JUR. TRIALS 5 (1967). See also S. SPEISER,ATTORNEYS' Cj 20:16 (1973).
                            Cj                                       FEES
     12. ABA Comm. on Professional Ethics and Grievances, Form. Op. 190, Feb. 17,
1939. The attorney should consider factors such as time and labor involved, the cus-
tomary fee in the location, the urgency of the matter, the experience and reputation of
his practice and the certainty of compensation. See Gettazard, Jr., ETHICS IN THE P A TC
                                                                                   R CI E
O LAW 97 (1978); W.M. Trumbull, Materials in the LAWYER'S
 F                                                                       R S N I IIY
                                                                          EP
                                                            PROFESSIONAL O SBLT 267
(1957).
     13. SPEISER,supra, note 11 at 535.
                       The Journal of the Legal Profession

                        A.    Constitutional considerations

     In Labonville, the defendant signed a retainer agreement to pay
the attorney a higher hourly rate if she was acquitted. The attorney
agreed to accept the lower fee, which the state would pay if she was
convicted. The court found this arrangement to be a contingent fee,
but said the defendant failed to prove the conflict of interest adversely
affected her lawyer's performance.14 The court refused to accept the
argument that the fee arrangement necessarily made representation in-
effective. Since the defendant failed to show her attorney's representa-
tion under the agreement was constitutionally defective, the court up-
held the defendant's c o n v i c t i ~ n . ~ ~
                                         However, in Simon v. Murphyf16 a
federal district court in Pennsylvania held that a contingent fee arrange-
ment similar to the one in Labonville, did create a conflict of interest for
the attorney which resulted in prejudice to the defendant.
     In Simon, the defendant was charged with the murder of her hus-
band. The attorney agreed to accept payment for his services from the
proceeds of an insurance policy o n the husband. The attorney failed to
advise the defendant of a plea bargain offered by the prosecution until
it was too late to accept. In Pennsylvania, the recovery of the insurance
award, and thus the attorney's fees, was contingent on an acquittal of
the defendant.17 A guilty plea to a lesser offense would eliminate the
insurance company's obligation to pay. The court's opinion stated: "A
plea of guilty would not only destroy relatrix' right to the insurance
proceeds, but also counsel's hope for further compensation. It is hard
to imagine a more striking example of blatant conflict between personal
interest and professional duty."lB The court refused to accept the argu-
ment that the defendant had not been prejudiced because she had also
asserted self-defense as a defense. The judge focused on the lack of
proper counseling and how it affected the choice of defenses
presented to the defendant.19

      14. Labonville, 126 N.H. at 454, 456, 492 A.2d at 1377-79.
      15. Id. See also Schoonover v. State, 218 Kan. 377, 543 P.2d 881 (1957) (The
                   f
Supreme Court o Kansas held the conduct of a court-appointed attorney to be unpro-
fessional when the attorney entered into a contingent fee arrangement with a criminal
defendant; however, the court held that this did not, of itself, establish ineffective assis-
tance of counsel).
      16. Simon v. Murphy, 349 F. Supp. 818 (E.D. Pa. 1972).
      17. Id. at 825.
      18. Id. at 823.
      19. Id. at 823.
                             Negotiating For Fees                                203

                            B. Contract principles
      Other courts have also ruled arrangements like that in Labonville
invalid. The holdings in these cases did not hinge on conflict of interest
principles, but rather on contract principles. In Commonwealth v.
                 the
 W~rrnsley,~~ Supreme Court of Pennsylvania ruled that court-ap-
pointed attorneys for an indigent criminal defendant, who was con-
victed by the trial court, could not contract with others for fees and
expenses related to his appeal. The court held, "[Tlhe fee paid [the
attorneys] by the county must be their exclusive compensati~n."~~          This
rule was reiterated by the Supreme Court of New Mexico in Hale v.
                .~~
B r e ~ s t e rIn Hale, the court ruled that a note executed by the de-
fendant to pay his court-appointed attorney was invalid for lack of con-
sideration because the attorney was already bound, by virtue of his
appointment, to perform the contract.23
      The ABA has issued opinions to help attorneys act ethically in es-
tablishing fee contracts. Counsel for criminal defendants cannot require
clients to sign a form contract which provides for full payment and
stipulates that by signing and promising such, the fee is nonrefundable.
The ABA has held that contracts must be created on a case-by-case
basis; attorneys may not use a standardized form which does not take
various factors about each client into c~nsideration.~~  However, the Illi-
nois State Bar Association Committee on Professional Responsibility has
determined when an attorney represents a client on both a criminal
and a civil matter stemming from the same set of facts, the attorney
may contract to handle both cases for a fee to be paid from the pro-
ceeds, if any, of the civil action. The Illinois Committee based its deci-
sion on the fact that a successful civil action would produce a res with
which to pay the attorney. This position mitigates some of the general
public policy concerns against contingent fees in criminal l i t i g a t i ~ n . ~ ~

                                V. MEDIA RIGHTS
     Some cases have posed dual problems of constitutional prejudice

    20. Commonwealth v. Worrnsley, 294 Pa. 495, 144 A. 428 (1928).
    21. Id. at 429.
    22. Hale v. Brewster, 81 N.M. 342, 467 P.2d 8 (1970).
    23. Id. at ,      467 P.2d at 10-11.
    24. Kansas Bar Ass'n Professional Ethics Cornm. Advisory Section Op. 84-12 (1984).
See also Model Code DR 2-106(B) (1982).
    25. Illinois Bar Ass'n Standing Cornm. on Professional Responsibility, Op. 84-9
(1985).
204                  The Journal of the Legal Profession

to a criminal defendant's rights and contract principles. These cases
deal with a type of fee contract in criminal cases wherein a criminal
defendant signs over to attorneys the rights to his life story, complete
with entertainment and commercial righb26Usually, such criminal cases
involve particularly heinous murders or serial crimes.
     Canon Five of the ABA Code of Professional Responsibility states
that "A lawyer should exercise independent professional judgment on
behalf of a client."27The ethical considerations which accompany Ca-
non Five point out that if an attorney is allowed to receive a beneficial
ownership in his client's publication rights, the attorney "may be
tempted to subordinate the interests of his client to his own anticipated
pecuniary gain."28
            For example, a lawyer in a criminal case who obtains from his
      client television, radio, motion picture, newspaper, magazine,
      book, or other publication rights with respect to the case may be
      influenced, consciously or unconsciously, to a course of conduct
      that will enhance the value of his publication rights to the prejudice
      of his client. To prevent these potentially differing interests such
      arrangements should be scrupulously avoided prior to the termina-
      tion of all aspects of the matter giving rise to the employment,
      even though his employment has previously ended.2B

Disciplinary Rule 5-104(B) says:
           Prior to conclusion of all aspects of the matter giving rise to his
      employment, a lawyer shall not enter into any arrangement or un-
      derstanding with a client or a prospective client by which he ac-
      quires an interest in publication rights with respect to the subject
      matter of his employment or proposed empl~yrnent.~~

     The ABA has adopted a new set of model rules which also ad-
dresses media rights. Rule 1.8(d) states: "Prior to the conclusion of rep-
resentation of a client, a lawyer shall not make or negotiate an agree-
ment giving the lawyer literary or media rights to a portrayal or account
based in substantial part on information relating to the
repre~entation."~'

    26. Maxwell v. Superior Court of Los Angeles County, 30 Cal. 3d 606, 639 P.2d
248, 180 Cal. Rptr. 177 (1982).
    27. Model Code Canon Five (1982).
    28. Model Code EC 5-4 (1982).
    29. Id.
    30. Model Code DR 5-104(B) (1982).
    31. Model Rules, Rule 1.8(d) (1983).
                             Negotiating For Fees                             205

     Although this new rule is substantially similar to DR 5-104(B), it re-
fers more specifically to "literary or media rights" than the older rule's
reference to "publication" rights.32It also prohibits the attorney from
negotiating such agreements with a client. This is more restrictive lan-
guage. The Comments to Rule 1.8 explain that:
     An agreement by which a lawyer acquires literary or media rights
     concerning the conduct of the representation creates a conflict be-
     tween the interests of the client and the personal interests of the
     lawyer. Measures suitable in the representation of the client may
     detract from the publication value of an account of the
     repre~entation.~~

Thus, the new rule and the comment are more restrictive than the
ABA's previous standard.
      The extent to which the rules protect a client can be seen in the
case of People v. Corona,34 a 1978 California Court of Appeals deci-
sion. Juan Vallejo Corona was convicted by a jury for 25 counts of first-
degree murder. All the victims were migratory farm workers, killed by a
knife or machete, buried in the same general area, and also buried in a
similar, if not identical, manner.35 The defendant was represented at
trial by Richard E. Hawk, a privately retained sole practitioner. Since
Corona could not actually afford such services, Hawk entered into a
contract for attorney's fees, whereby Hawk would have exclusive liter-
ary and dramatic rights to Corona's life story, including the trial for mur-
der. As part of the contract, Corona waived the attorney-client privi-
lege, insuring Hawk the right to publish the most intimate details of his
life and trial. The contract was irrevocable and binding in perpetuity on
Corona, "his heirs, executors, legal representatives and assigns." Also,
all of the income from any publication was to go exclusively to Hawk.36
During the trial, Hawk hired a professional writer, who sat at the coun-
sel table during the proceedings, and signed a publishing contract with
MacMillan Publishing Company. The book, Burden o f Proof, The Case
o f Juan Corona, was published shortly after the
      Corona appealed his conviction on two grounds: first, the trial
counsel refused to raise adequate defenses, namely an insanity de-

    32.   Id. Model Code Comparison.
    33.   Model Rules Comment to Rule 1.8 (1983).
    34.   People v. Corona, 80 Cal. App. 3d 684, 145 Cai. Rptr. 894 (1978).
    35.   Id. at 693-694, 145 Cal. Rptr. at 897-898.
    36.   Id. at 703, 145 Cal. Rptr. at 903-904.
    37.   Id.
206                  The Journal of the Legal Profession

fense, and second, a conflict of interest made the trial inherently un-
fair.a8 The court held the trial counsel had grossly neglected his basic
duty by failing "to conduct the requisite factual and legal investigation
in an effort to develop fundamental mental defenses available for his
client and as a result of his negligence, crucial defenses were with-
drawn from the case."39 The trial court concluded that the decision not
to raise any mental condition defenses was either the result of igno-
rance of the law or "deliberate intentional withholding of a crucial de-
fense," given the nature of the murders, the defendant's previous
mental history, and reports of psychiatrist^.^^ In addition, the court
found the literary contract had influenced the attorney's decision to
prevent a mental defense from being raised. The contract created a
situation where the attorney had "two masters," each with conflicting
interests - "his pocketbook and the best interests of his client." The
attorney's conduct in not presenting crucial defenses not only reduced
the trial to a farce, but, in actuality, put the lawyer in a position virtually
adverse to his client, in that he took steps t o deliberately thwart the
development of viable defenses available to the accused.41 Thus, the
court found that a conflict of interest between the attorney and his
client existed, and that the conflict resulted in manifest prejudice t o the
defendant. "Such conduct constituted not only an outrageous abroga-
tion of the standards which the legal profession has set for itself and
upon which clients have the right to rely, but also rendered the trial a
farce and mockery calling for reversal of the conviction and requiring a
new
      The Corona case shows an extreme extent t o which an attorney's
conduct can be compromised by a literary conflict. Other courts, not
faced with obvious breaches, have not been as willing to reverse con-
victions and allow new trials. In People v. Fullerj43the court refused to
invoke a per se conflict of interest rule and t o reverse Fuller's convic-
tion upon the showing of a literary rights contract with an attorney.
Thomas Fuller pled guilty and was convicted of killing five children, ages
 5 to 16 years. He was represented at trial by a public defender and a
second court-appointed attorney, Whitney Hardy. Hardy prepared a

    38. Id. at 704-705, 145 Cal. Rptr. at 905.
    39. Id. at 706, 145 Cal. Rptr. at 906.
    40. Id. at 709, 718, 145 Cal. Rptr. at 907, 914.
    41. Id. at 720-721, 145 Cal. Rptr. at 915-916.
    42. Id. at 727, 145 Cal. Rptr. at 920.
    43. People v. Fuller, 21 111. App. 3d 437, 315 N.E. 2d 687 (1974), habeas corpus
den'd 421 F. Supp. 582 (E.D. 111. 1976).
                              Negotiating For Fees                                 207

contract that Fuller and his mother signed. Hardy promised to protect
Fuller's "common law" rights in Fuller's unpublished writings- three
books and a diary- and video tapes of a psychiatric e~amination.~~       In
return, Hardy was to receive a contingent fee of one-third of any royal-
ties received upon publication. Fuller requested the contract to be ter-
minated after his sentencing, and Hardy did so. Fuller appealed, claim-
ing a mandatory reversal of his conviction due to the per se conflict of
interest on Hardy's part.45The court held the per se rule in Illinois ap-
plied only where the counsel's conflict of interest arose from a commit-
ment to others. The court refused to apply the rule in Fuller's case since
the conflict was not explicitly covered by the rule.4eHardy's conduct
was a violation of Illinois Code of Professional Responsibility, Canon 5,
DR 5-104(3), but his conduct did not invoke the per se rule since no
commitment to others was involved. The court also focused on the
fact that the public defender who represented Fuller was not subject to
any conflict of interest; thus, Fuller's sixth amendment right to counsel
was not denied.47
      Sometimes, courts have held a defendant's full disclosure of con-
flicts is a factor which may be considered a constituting a waiver. In
                                                 s
Maxwell v. Superior Court,48 the Supreme Court of California refused
to affirm the trial court's decision to recuse the defendant's counsel.
Defendant Bobby JoeMaxwell had retained the attorneys he wished to
represent him in a trial on four counts of robbery and ten counts of
murder. The murders allegedly occurred in Los Angeles' Skid Row, and
the media had named the killer the "Skid Row Stabber." Maxwell faced
the death penality if convicted. He chose to use the media notoriety to
help finance his defense.4Q agreed their fee would be "any and all
                                He
rights, title, and interest, of any kind, nature and description throughout
the world in and to the story of [his] entire life."50 The contract also
allowed Maxwell the right to 15 percent of the net amount, and he, in
turn, promised to "cooperate in the exploitive efforts and not to dis-

     44. Id. at ,     315 N.E.2d at 687-688.
     45. Id. at ,     315 N.E.2d at 688-689. Under the per se conflict of interest rule,
showing of prejudice was not necessary.
     46. Id. at ,     315 N.E.2d at 690-691.
     47. Id. at ,     315 N.E.2d at 691.
     48. Maxwell v. Superior Court of Los Angeles County, 30 Cal. App. 3d 606, 639
P.2d 248, 180 Cal. Rptr. 177 (1982).
     49. Note, Maxwell v. Superior Court: Buying Counsel of Choice or Ineffective As-
                   L.
sistance?, 71 CALIF. REV. 1348 (1983).
     50. Maxwell, at ,      639 P.2d at 249-250, 180 Cal. Rptr. at -.
208                   The Journal of the Legal Profession

close his story to other^."^' The more disturbing clauses of the contract
included a waiver of all defamation and invasion of privacy claims, as
well as the attorney-client privilege. The attorneys were not obligated
to undertake an appeal, and the terms of the contract specifically
stated possible conflicts of interest and prejudice. Also, "[ilt declares
that counsel may wish to (1) create damaging publicity to enhance ex-
ploitation value, (2) avoid mental defenses because, if successful, they
might suggest petitioner's incapacity to make the contract, and (3) see
him convicted and even sentenced to death for publicity value."52 The
trial court found the fee contract resulted in a conflict of interest which
violated constitutional guarantees of effective counsel and ethical stan-
dards and "jeopardized the integrity of the judicial process."53 O n ap-
peal, the California Supreme Court failed to accept this broad ruling,
and focused on much more narrow grounds:
      W e stress that our opinion connotes no moral or ethical approval
      of life-story fee contracts. We have addressed only this narrow
      question: May a criminal defendant (here charged with capital
      crimes) be denied his right to representation by retained counsel
      simply because of potential conflicts or ethical concerns even when
      he has asserted, after extensive disclosure of the risks, that he
      wishes to proceed with his chosen lawyers and no others? Our
      answer is No.='

The extensive pretrial disclosures about possible conflicts and the de-
fendant's insistence on proceeding with his chosen counsel constituted
an adequate waiver which precluded their removal.55
     Even though the court allowed counsel t o remain, at least one jus-
tice expected to see the Maxwell case on another appeal: "Although it
appears to me that Maxwell has adequately waived any conflict inher-
ent in the contract, I am under no illusion that, if convicted, he will not
raise the conflict as a ground for reversal. It will have to be dealt with
at that time."5'3

      51. Id.
      52. Id. at ,                                       .
                      639 P.2d at 250, 180 Cal. Rptr. at -
      53. Id. at ,   639 P.2d at 251, 180 Cal. Rptr. at -.
      54. Id. at ,   639 P.2d at 257-258, 180 Cal. Rptr. at -.
      55. Id. at ,    639 P.2d at 257, 180 Cal. Rptr. at .       Maxwell was eligible to
have an attorney appointed for him because he was indigent. He nevertheless wished
to keep his chosen counsel even after the trial judge specifically questioned him about
the clauses of the contract which disclosed possible conflicts.
      56. Maxwell, 30 Cal. App. 3d at ,    639 P.2d at 258, 180 Cal. Rptr. -(Kaus,
I., concurring).
                             Negotiating For Fees                      209

      Generally, courts are not willing to use conflicts of interest as evi-
dence of a lack of a defendant's constitutional rights to representation.
In Wojtowicz v. United States,=' the court held that the defendant had
not received constitutionally defective counsel, even though the attor-
ney had a financial interest in the client's movie rights. The defendant
pleaded guilty to one count of armed bank robbery. JohnStanley Woj-
towicz and two confederates tried to rob the Brooklyn Branch of
Chase Manhattan Bank in New York. The unsuccessful attempt gave
rise to the film "Dog Day A f t e r n o ~ n . " ~ ~
                                               Wojtowicz asserted, on ap-
peal, that he had not received effective assistance of counsel due to
the fact "that counsel's fee and expenses" were to be paid from funds
generated by the sale of the movie rights, which counsel helped to
                  .~ a
n e g ~ t i a t e In ~ short, terse statement on this issue, the court held,
"While we do not regard this practice as worthy of emulation, we can-
not say that it rendered counsel's representation constitutionally
defective."60
      This case shows the "disfavor" of a defendant's claim of ineffec-
tive assistance due to a conflict of interest born out of a publication
rights contract. Unless the facts show a gross conflict on the part of the
representing attorneys, the defendant's claim will likely be denied on
appeal. The previously discussed Corona case was such that no rem-
edy short of a new trial would suffice. The defendant's conduct and
history pointed to mental problems; and the attorney's action of not
raising the defense suggested he did not want an unsuccessful mental
defense to lessen the profits he would make, nor did he want a suc-
cessful one to void the contract. Clearly, the conflict was too great to
ignore.
      Even though the ABA Model Code has tried to restrict publication
rights contracts, attorneys have continued to enter these contracts and
have problems with them. These contracts arise most often in cases
which deal with well-known defendants' bizarre crimes. Attorneys have
problems in not capitalizing on the opportunity to make a profit on a
case which carries so much media coverage. The old ABA rule prohib-
ited an attorney from making an agreement or understanding with a
client prior to the conclusion of his employment. The new rule forbids
making or negotiating an agreement based substantially on the employ-

   57.   Wojtowicz v. United States, 550 F.2d 786 (2d Cir. 1979).
   58.   Id. at 787.
   59.   Id. at 792.
   60.   Id.
20
 1                    The Journal of the Legal Profession

ment matter. Perhaps this stricter language will dissuade attorneys from
entering a fee contract based on publication rights.

                                 VI. CONCLUSION
     Since the problems of attorneys contracting for fees are usually
not a direct ethical violation, the "punishment" ranges from no action
to public censure,61 reprimand,B2 and disbarment. Although attorneys
have a great deal of latitude in establishing fees, they should use care
not to skirt too closely to the ethical restrictions for setting fee con-
tracts and retainer agreements. Doing so invites an appearance of im-
propriety which can lead to embarrassing litigation between the attor-
ney and client. This type of notoriety can cripple a trial lawyer's
practice. An attorney should forego the temptation of entering into an
attractive fee contract which might sour his business reputation.
                                                           Debra K. Wilkinson




     61. In re Steere, 217 Kan. 271, 536 P.2d 54 (1975).
     62. In re Fasig, 444 N.E.2d 849 (1983).

								
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