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Issues In NY Criminal Law--Vol. 5, #3©

Issue: Retainer agreements in criminal cases

Under the state and federal constitutions, a criminal defendant is entitled to be represented by an attorney even if the defendant is unable to afford counsel. A defendant financially able to retain private counsel must do so, or proceed pro se.


Rules for criminal law retainers in the main are the same as in other areas of law, with a couple of exceptions. First, a contingency fee in a criminal case is improper. People v Winkler, 71 NY2d 592, 528 NYS2d 360 (1988); 22 NYCRR § 1200.11(c)(1).
Second, the requirement for arbitrating fee disputes, set out in 22 NYCRR Part 137, is inapplicable to criminal law retainers. 22 NYCRR § 137.1(b)(1). Handling a Criminal Case in New York, § 2:43. The parties, however, may agree to arbitrate, rather than litigating the fee dispute.

These exceptions aside, the rules generally applicable to retainers in other areas apply to criminal law.

Minimum nonrefundable fee imprope

For example, a "minimum nonrefundable retainer" is improper; indeed, one of the leading decisions recognizing this comes from a criminal law case. Matter of Cooperman, 83 NY2d 465, 611 NYS2d 465 (1994). A client has the unfettered right to choose counsel. An attorney who is discharged before the end of the case may be compensated in quantum meruit, but not beyond.

To be distinguished from a minimum nonrefundable retainer is a flat fee or minimum fee, which are permissible.

One reported case has observed that the typical arrangement in a private criminal case is a "flat fee" agreement: "The standard for criminal defense attorneys is not to charge an hourly rate for criminal cases, but rather a flat fee for representation. The amount of the flat fee is normally determined by whether or not the matter is resolved with or without a trial. This flat fee standard recognizes the fact that the preparation and trial of a criminal case requires many disparate tasks and functions for the attorney and support staff. Some may require legal expertise while others may only be ministerial in nature. To charge one hourly rate for all services rendered would not be fair and reasonable to the client. Therefore, the flat fee is the standard accepted by the criminal defense bar." People v Cybulski, 192 Misc2d 442, 746 NYS2d 558 (Co Ct 2002), reversed on other grounds sub nom. Katzer v County of Rensselaer, 1 AD3d 764, 767 NYS2d 474 (3d Dept 2003).

Limited scope of representation

The attorney-client agreement in a criminal case may limit the scope of representation. An attorney may restrict representation to a portion of a case. See NYS Bar Association Ethics Opinion 89-604; Handling § 2:48. An attorney whose representation is limited should inform the court beforehand of this, appearing "provisionally." An attorney of record who seeks to withdraw from representation must do with court permission, on notice to the client. See CPLR 321(b)(2); 22 NYCRR 1200.15(a).

Written retainer if $3,000 or more

With a fee of $3,000 or more, state regulations require that the attorney provide a written retainer or "letter of engagement." 22 NYCRR Part 1215.

Disclosure of retainer

An attorney-client fee arrangement is not a confidential communication. Priest v Hennessy, 51 NY2d 62, 431 NYS2d 511 (1980). Where more than $10,000 is paid in cash or cash equivalent, a disclosure notice, Form 8300 must be filed. 26 USC §§ 6050I, 7203. (Cash equivalent includes cashier's checks, bank drafts, traveler's checks and money orders. Personal checks, which the federal government tracks in other ways, are not subject to the federal filing notice.) See Hall, Professional Responsibility of the Criminal Lawyer, 2nd ed., §§ 8:11 et seq.

Double dip is improper

An attorney who is assigned may not also obtain payment from the client. See 22 NYCRR § 603.19 (First Department); 691.16 (Second Department); 1022.12(a) (Fourth Department). Handling § 2:41. In promulgating a new regulation, the Presiding Judge of the Second Department commented: "Unfortunately, there have been isolated incidents where assigned counsel have intimated to indigent defendants that they could be better represented if they were retained privately at rates greater than the statutory 18-b reimbursements." The rule purports to bar an attorney from accepting a retainer not only for the case the attorney is appointed on but any other case the defendant might be involved in. Cf. NYS Bar Association Ethics Opinion 551.

If paid from two sources, government and the defendant, the attorney may face criminal prosecution. See People v Tirelli, 156 AD2d 738, 549 NYS2d 489 (2d Dept 1989).


"The hope that every man can be his own lawyer, which has existed for centuries, is probably no more realistic than having people be their own doctor."
Peter M. Tiersma, Legal Language


hybrid representation - Where a defendant seeks to represent himself, typically by discharging the assigned attorney, the court may, but is not required to, assign an attorney to assist the defendant. The court must advise the defendant on the record of the risks in proceeding pro se. A defendant has no constitutional right to hybrid (or "standby") counsel. People v Rodriguez, 95 NY2d 497, 719 NYS2d 208 (2000).


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