Kentucky Supreme Court To Hear "No Win, No Pay" Criminal Fee Case; Warren County Lawyer, Nancy Oliver Roberts, Faces Numerous Ethics Violations In Fee Dispute.

Indicted in the 1997 murder of his adoptive father, Alan David Manning agreed to pay attorney Nancy Roberts with assets from the family’s 160-acre Warren County farm, which Manning was due to inherit.

But under Kentucky law, you can’t inherit property from someone you are convicted of killing. That meant Roberts could only collect her fee contingent on winning Manning’s acquittal.
And Kentucky, like every other state, bars lawyers from charging or collecting a contingent fee in criminal cases. One reason is to avoid a conflict in which the lawyer — needing an acquittal to win a fee — urges a client to reject a plea bargain that’s in his best interest.

That’s what happened in Manning’s case, according to a lawyer disciplinary hearing officer who found Roberts guilty of violating that rule and eight other ethics regulations.
In a case to be heard March 13 by the Kentucky Supreme Court, the hearing officer recommended that Roberts, 61, be suspended from practice for one year.
But the Kentucky Bar Association’s board of governors, to which Roberts appealed, unanimously found her not guilty of seven of the charges — including violating the contingent-fee rule — and recommended she be suspended 30 days.

Now, the Supreme Court will decide what, if anything, Roberts did wrong, and whether she should be punished for it. It could reinstate any of the charges or none of them. It is the first case in which the court has ever considered a violation of the contingent contract rule in criminal cases.
In Manning’s case, a prosecutor offered a lenient deal — five years for second-degree manslaughter — but Roberts didn’t advise him to take it, court records say. He was convicted and sentenced to life in prison.

A circuit judge later set aside his conviction and excoriated Roberts, saying it was “hard to imagine a more striking example of blatant conflict between personal interest and professional duty.”
Roberts, a former teacher who has practiced law for 25 years, denies she did anything wrong and is asking the court to set aside the two bar charges on which she was found guilty — representing multiple clients and refusing to surrender Manning’s file to an assistant public advocate who succeeded her.

She referred questions to her lawyer, Lee Huddleston, who said in an interview that the charges are “ludicrous.” He said if the court orders Roberts suspended for a year it would destroy her practice.

Aggressive pursuit

The case spans 14 years — starting Nov. 23, 1998, when Earl Manning was shot three times in the head and stabbed five times in the chest.
David Manning was charged with murder, after a gun matching the one used in the shootings was found at his home. He told a detective that his father had molested him and other children when he was growing up.

Roberts agreed to represent Manning for an initial payment of $2,500 — possibly including money that might come from the estate, according to her contract. Manning later agreed to pay her more from the sale of timber on his father’s land, which Roberts knew he would get only if he were acquitted.

Then-Commonwealth’s Attorney Steve Wilson — who believed David Manning and his brother had been molested as children by their father, and had unsuccessfully prosecuted Earl Manning for the alleged crimes — offered a sentence of only five years.
Manning later testified that Roberts urged him to reject it, saying, “We are going to beat it.”
Roberts denied that, although she admitted she didn’t tell him to take the deal, either, according to bar records.

With Roberts defending him, Manning was tried in October 1998, convicted and sentenced to life behind bars.

Represented by a new lawyer, he filed a motion for a new trial based on Roberts’ ineffective counsel, and in 2005, Warren Circuit Judge John Grise granted it.
Grise said in an order that Manning didn’t have a chance of winning at trial — he had confessed the crime to his common-law wife — and that Roberts should have urged him to take the plea bargain, “the only clearly reasonable course of action facing him.”
“The contingency fee agreement hindered her aggressive pursuit of her client’s best interests,” Grise said.

Manning was offered a new plea deal — this time 10 years for manslaughter — and in November 2005, he took it. He is now in prison on escape and burglary charges.

He didn’t respond to a request for comment.

Facing the bar

A bar inquiry tribunal charged Roberts with the alleged contingent fee violation as well as incompetently representing a client and stringing out the estate for eight years in hopes of collecting her fee. She also was accused of representing multiple clients with adverse interests — Manning, his brother Andy, who also was an heir, and the executor of the estate.
The hearing officer, Trial Commissioner Katherine Ford of Louisville, found Roberts guilty on all nine counts and recommended the year suspension, the minimum sanction urged by Deputy Bar Counsel Jane Herrick.

Herrick said in a brief that there is a “dearth” of law from other states on the appropriate sanction for violations of the contingency fee rule because it is so obvious that most lawyers know not to violate it. She also said there is “scant case law” on Roberts’ “bizarre course of conduct.”
Huddleston portrayed his client as “a lawyer who loves her clients and is loved by her clients.” He said she worked more than 1,000 hours for Manning, a family friend, including many nights at the jail, and never expected to be paid. And he said language in her contract about collecting from the estate was “merely an encouragement for him to pay, if able.”
“The words ‘contingency’ or ‘winning your case’ do not appear in the contract,” Huddleston said in his brief for Roberts.
Moreover, Manning decided on his own to reject the plea offer, Huddleston said.

The day after Manning’s arrest — before he consulted Roberts — Wilson visited him in jail and asked him if he’d take the five years. Manning “adamantly rejected the offer and told him unequivocally that he had not murdered Earl,” Huddleston says in the brief.
“David was simply not going to plead guilty to murdering Earl Manning, and there was nothing Ms. Roberts could have said that would have changed his decision,” Huddleston said.
Plus, if she knew Manning was going to lose at trial, Huddleston argued, it would have made no sense for her to have discouraged him from taking the plea bargain because if he was found guilty, she couldn’t have recovered from the inheritance anyway.

 Huddleston said Manning lied when he claimed Roberts didn’t discuss the ramifications of the plea because he was desperate to get out from under a life sentence. “David was/is a professional criminal,” Huddleston said.
As for representing both David and Andy Manning — and the executor — there was no conflict because of the brothers’ “genuine love for each” and their long and deep friendship with the executor, Huddleston said.

Action by board

The Board of Governors, which includes four lay members, didn’t explain its votes unanimously exonerating Roberts of most of the charges.
But finding her not guilty of representing Manning on a contingent basis, it noted that she was never paid from the estate — and the language in her contract that would have allowed that was merely advisory.
The board also mentioned that after Manning was convicted, he wrote Roberts a note that he should have “copped” to the plea but still insisted that he “didn’t kill anyone.”
“Thus even after his conviction, David professed innocence,” the board said.
In addition to the 30-day suspension, the board voted 13-4 that Roberts take a class on “Ethics and Professionalism” and pay $7,904 in costs.

Editor's note:

Kentucky Supreme Court rule

“A lawyer shall not enter into an arrangement for, charge or collect a contingent fee for representing a client in a criminal case.”

“If the heir under a will ... takes the life of the decedent by the commission of any felony, the person so convicted forfeits all interest in the property of the decedent."

Questions and answers

Q: What is a contingent fee?
A: A contingent fee is any fee payable only if there is a favorable result.

Q: Why are contingent fees prohibited in criminal cases?
A: To discourage the corruption of justice, such as paying bribes or suborning perjury in a single-minded effort to win. Also, to avoid conflicts in which lawyers might avoid plea bargains — or avoid arguing for a conviction to a lesser crime than the one charged — so they can win outright acquittal and get paid.

Q: Why are contingent fees allowed in civil cases?
A: To give people without means access to the justice system. The U.S. Supreme Court has said the state must provide legal representation in criminal cases to the indigent.

Q: Have any lawyers in Kentucky been sanctioned for charging a contingent fee in a criminal case?
A: No, but two in Indiana have, in 1983 and 1987. Both were publicly reprimanded.

Q: Are contingent fees banned in other kinds of cases?
A: Yes, in divorce cases because of concerns that an attorney might discourage a reconciliation if a fee depends upon the granting of a divorce.
Sources: University of Kentucky law professor William Fortune; William Shepherd, chairman, American Bar Association, criminal justice association; Columbia Law Review; Northwestern Journal of Criminal Law and Criminology