Should Hugh Rodham Be Disbarred?

Hugh Rodham, Hillary Clinton’s lawyer brother, returned $400,000 in fees that he received for lobbying for a presidential pardon and a prison commutation for two felons. The fees included a $200,000 “success fee” for helping to win the pardon of Almon Glenn Braswell. Does accepting a contingency fee in a criminal case violate any ethical code?

Yes. In Florida, where Rodham is a member of the bar, the Rules of Professional Conduct state, “A lawyer shall not enter into an arrangement for, charge, or collect: a contingent fee for representing a defendant in a criminal case.” (Click here to read the complete rules. You’ll need Adobe Acrobat.) That ethical rule applies in nearly every state.

Why is it unethical? Two reasons are generally given: 1) Contingency fees tempt lawyers to act corruptly on behalf of their clients in order to pocket the extra cash; and 2) Winning a criminal case, unlike winning a civil case, does not result in a sudden windfall from which an attorney can skim off the top. Still, some think the rule is a historical accident arising from the time when all contingency fees were frowned upon. Nonetheless, the rule exists and is enforced.

Did Hugh Rodham accept a contingency fee in a criminal case and thereby violate Florida’s ethical rule? Unclear. For one thing, lobbying for a pardon might not qualify as criminal defense work. Also, nobody knows whether the money Rodham received was contingent on the pardon. President Clinton artfully evaded the subject, saying only that there were “press inquires that Hugh Rodham received a contingency fee.” The Associated Press called the $200,000 a “success fee,” which may be slightly different from a contingency fee. It’s OK for a lawyer to accept extra cash from an exuberant client after the fact–it’s just not OK to agree before trial that a lawyer’s fee is dependent on a particular outcome.

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Explainer thanks Chris Slobogin, professor of law at the University of Florida.