Contingency Fees in South Carolina Criminal Law Cases

I practice quite a bit of South Carolina criminal law on the defense side.  In other words, if someone is charged with a criminal offense in South Carolina, I am often retained (or hired) to represent and defend these individuals.  Over the years, I have noticed that there are many misconceptions about how attorneys charge for their services.  I hope that this article, along with others I plan to write on the issue of South Carolina attorney fees, provides some insight for those seeking legal services in South Carolina.

Many clients have seen attorneys on television advertising that they “do not get paid unless you get paid” or some similar language.  In my experience, the great majority of these attorneys are personal injury attorneys representing those injured in car accidents, or otherwise due to allegations of negligence against some third party.  These attorneys are seeking to represent potential “Plaintiffs” – those who would seek compensation for losses caused due to someone else’s negligence.  In the South Carolina personal injury world, it is quite common, if not the “norm” in my experience, for these attorneys to 1) provide some form of a free consultation to potential or prospective clients, and 2) to take or accept injury cases when representing Plaintiffs on a contingency fee basis.

What is a contingency fee?  In its simplest terms, a contingency fee means that the lawyer or law firm representing you in a personal injury case will charge a percentage of the recovery (or money paid to you as the result of a settlement or legal verdict) as his or her fee.  This percentage is how that lawyer gets paid and pays his or her overhead (such as staff, office rent, telephone, etc.).  There is often a shared risk element here – if the attorney is not successful in obtaining a favorable outcome for the client, the attorney may not be able to collect his or her fee and the client also does not get compensated for the alleged injury or loss.  This article is not meant to get into the intricacies of contingency fee contracts, but it is this point that leads into the purpose of this article.

In South Carolina, a criminal defense attorney representing an individual charged with a criminal law offense cannot charge a contingency fee for representation.  This is not a business decision on the part of the lawyer, but is instead an absolute prohibition by Court Rule.

The exact South Carolina Rule is as follows:

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof, provided that a lawyer may charge a contingency fee in collection of past due alimony or child support; or

(2) a contingent fee for representing a defendant in a criminal case.

An example would be as follows: a South Carolina criminal defense attorney could not tell a client, in my opinion based on my interpretation of the Rules governing attorney-client relationships in South Carolina, “I will represent you in your Hilton Head Island DUI case, and if I get the charge dismissed, you pay me $10,000.00, but if not, then you pay me nothing”.  In a contingency fee case, the attorney is essentially hoping to get paid by taking a portion of a recovery received from some third-party in the future, and not necessarily from the client’s direct funds.  In the criminal defense world in South Carolina, money damages are not being sought from some third-party, but instead the State of South Carolina is seeking to potentially penalize and/or jail/imprison an individual.  This is a very different scenario.  What does this mean as a practical matter?

1) A South Carolina criminal defense attorney is much more likely to charge an initial consultation fee for a potential criminal client than an attorney meeting with a prospective or potential personal injury client.  Why?  The attorney cannot seek payment from a future potential monetary recovery, and the attorney has overhead to pay, such as staff, utilities, bar dues, etc.  I have actually had prospective clients call and demand a “free consult” in criminal law matters, claiming the person had a “right” to this.  This could not be further from the truth – a free initial consultation in this realm is a business decision on the attorney’s part, and there is certainly no constitutional right, for instance, to a free initial consultation with a South Carolina criminal defense attorney.  Point two below will further illustrate why attorneys outside of the personal injury Plaintiff’s realm often charge consultation fees.

2) Though there are many ways of charging South Carolina criminal clients for representation, the most common in my experience are charging by the hour or charging via a flat fee representation agreement.  For example, an attorney may charge X dollars per hour for representation, or the attorney may charge some flat fee or amount, such as Y dollars, for the entire representation.  If a criminal defense attorney charges by the hour in particular, the attorney is still paying overhead and not working on other paying matters while meeting with a prospective client.  Initial consultations in criminal law matters can often take up to two hours in my experience in order to fully and competently explain the situation and provide an overview of potential legal options – if the attorney is not charging a fee for this service, the attorney is likely not bringing in any revenue for this time.

While I plan to write further on attorney fee matters, this article is meant to provide some general background on this topic.  A South Carolina criminal defense attorney should be willing to discuss fees and costs of representation with you.  This conversation normally happens during the initial consultation.  Please just remember that the attorney is forbidden from taking your South Carolina criminal law case on a contingency fee basis.  As a practical matter, this means that either you or someone on your behalf will need to be able to provide some or all of the funds for representation in order to retain the attorney.

If you would like to speak with an attorney from our firm concerning your criminal law matter or other legal matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).  Our primary office is located on the South End of Hilton Head Island in Orleans Plaza, at 37 New Orleans Road, Suite V, Hilton Head Island, SC 29928.

Our practice areas are primarily limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

This article was written by Dustin Lee, a South Carolina licensed attorney.  The information contained in this article is not and is not to be construed as legal advice.  This article was written in June of 2015 – changes to South Carolina law may occur or may have occurred since publication.