People v. Winkler

• Decision Date: 28 April 1988
• Citation: 528 N.Y.S.2d 360,71 N.Y.2d 592,523 N.E.2d 485
• Parties: , 523 N.E.2d 485 The PEOPLE of the State of New York, Appellant, v. Richard WINKLER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 360

528 N.Y.S.2d 360

71 N.Y.2d 592, 523 N.E.2d 485

The PEOPLE of the State of New York, Appellant, v. Richard WINKLER, Respondent.

Court of Appeals of New York.

April 28, 1988.

Carl A. Vergari, Dist. Atty. (Diane E. Selker and Richard E. Weill, White Plains, of counsel), for appellant.

Robert N. Isseks and Alex Smith, Middleton, for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Legal representation in a criminal proceeding pursuant to a contingent fee retainer, while unquestionably unethical, does not constitute per se ineffective assistance of counsel. A defendant may, however, be entitled to relief upon satisfying the defense burden of showing that the contingent fee conflict of interest effected less than meaningful and constitutionally guaranteed legal representation.

Defendant's conviction for murder in the second degree after a jury trial was reversed by the Appellate Division, 128 A.D.2d 153, 515 N.Y.S.2d 488, on the law; it ordered a new trial solely on a per se ineffective assistance of counsel ground raised in a CPL 440.10 proceeding. We disagree with that result and reverse and remit to the Appellate Division.

Defendant-respondent Winkler and an accomplice, Williams, killed Winkler's father while he slept. The two men with another, named Gruber, drove to the family house and parked nearby. Leaving Gruber with the car, the two walked to the house. Approximately 45 minutes later, Gruber heard two shots. Shortly thereafter, Winkler and Williams returned; Winkler opened the trunk and Williams placed a rifle wrapped in a tee shirt inside. In the car, Winkler told Gruber, "You don't know anything" and promised Williams $10,000. Williams made statements such as, "I shot him in the head and chest", "we got the guy", and "I can't believe I shot him".

After Winkler's arrest, his mother and grandmother engaged Robert Hufjay as his counsel under a written contract requiring payment to Hufjay of $2,000 upon execution and $18,000 upon the settlement of the elder Winkler's estate. The contract added that: "It is understood and agreed, subject to the approval of RICHARD WINKLER, that in the event RICHARD WINKLER is acquitted or found not guilty by reason of insanity, or some other legal reason, and inherits from the Estate of Irving Winkler, that RICHARD WINKLER shall pay, as additional legal fees, the sum of $15,000." Prior to endorsing the contract, defendant personally increased the figure in the contingent fee clause from $15,000 to $25,000.

Following his conviction for murder in the second degree after a jury trial and while his appeal from the judgment was pending, Winkler moved under CPL 440.10 to set aside his conviction on the ground of ineffective assistance of counsel. Winkler revealed for the first time in his moving papers that his trial counsel had represented him on a contingent fee arrangement. He contended that the agreement was a per se violation of his right to effective assistance of counsel and that the representation he received was deficient in other respects; namely, not seeking jury instructions on lesser included offenses; not asking for a charge that Gruber was an accomplice; not asserting an intoxication defense; not moving for severance; not preparing him for his testimony; and not making certain trial objections.

The Westchester County Court rejected the per se violation argument and addressed the issue of denial of effective assistance of counsel under the standard in People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400. In its Baldi analysis, the trial court did not consider the contingent fee agreement at all nor did it examine the potential compromising effects the agreement might otherwise relevantly have exerted on the representation of defendant. Finding no factual support for Winkler's assertion of professional deficiencies, the court ruled he received meaningful representation.

The Appellate Division reversed, on the law, the denial of Winkler's CPL 440.10 motion, granted it, vacated the judgment of conviction, ordered a new trial and dismissed the appeal from the judgment as academic. That court concluded that such agreements intrinsically create a substantial possibility of prejudice because they pit an attorney's financial interest against the client's entitlement to uncompromised counsel. The court reasoned that since these agreements are outside the record and their effect on counsel's conduct is insidiously subtle, they would seldom come to the attention of the Trial Judge so that protections such as those provided by People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550, could be interposed. The Appellate Division ruled that contingent fee arrangements in criminal cases constitute a per se denial of a defendant's right to effective assistance of counsel because of the perceived significance of the conflict and the apparent unavailability of practical protections.

Our analysis starts with the well-settled proposition that "[p]ublic policy properly condemns contingent fee arrangements in criminal cases" (Code of Professional Responsibility EC 2-20). DR 2-106(C) of the code makes it a breach of legal ethics for a lawyer to "enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case" (Code of Professional Responsibility DR 2-106[C]; see also, ABA Standards for Criminal Justice, Defense Function § 3.3[e] ). The New York State Bar Association adds relevantly "that the Code prohibition of DR 2-106(C) encompasses, in addition to wholly contingent fees, agreements which provide in addition to a fixed basic fee, a further fixed fee contingent upon some specified result" (N.Y.State Bar Opn. No. 412 [1975] ).

Complementing the professional disciplinary perspective, civil law principles condemn "bargain[s] to conduct a criminal case * * * in consideration of a promise of a fee contingent on success" (Restatement of Contracts § 542[2] ). These arrangements are thus met with universal disapproval and, as a matter of strong public policy, we join in all appropriate efforts to discourage and sanction them.

The conflict between a client's interest in effective assistance of counsel and an attorney's financial inducements to satisfy the contingent fee qualifying terms creates an atmosphere for risky compromise of the client's best interests on the gamble that the contingency might produce a bonus to the attorney rather than justice to the client. The prohibition of contingent fee arrangements protects a criminal defendant's interests and reduces the temptation for counsel "to employ improper or corrupt tactics to...