The work involved in petitioning a reviewing court to grant a discretionary appeal is enormous and very difficult. No lawyer would agree to undertake such a project on a contingent fee, and to do so in a criminal case would be unethical and illegal.
You are correct, in fact the Supreme Court accepts very few cases. The work involved in this is huge. It would be like a doctor having to return the fee if the patient died. And, as my colleagues have answered, a lawyer may not accept a contingent fee on a criminal case. We get paid the same, conviction or not. Probably a good rule.
We do not have a client/attorney relationship until you make an appointment, we discuss your case face to face, I accept a retainer, and we explictly agree to enter into representation.
Sounds like you are asking a lawyer to charge a contingency fee on a criminal case, which would be an ethical violation.
If a case is so important to you that you want an attorney to work on a Supreme Court appeal, which could take 20 hours or 100 hours over the next 6-18 months, then it should be important enough for you to invest money into the work and hopefully obtain the results you want, but it is neither possible nor ethically permitted to guarantee an outcome.
Depending on the nature of your case, you might be able to find an appellate lawyer who is willing to represent you pro bono (for free), in filing your petition for review to the Supreme Court. There are also law schools that have student clinics that might be willing and able to help (again, for free). But it will depend on whether you've got a strong case for appeal.
The Supreme Court of Ohio is intended to be the highest court of review and, accordingly, only accepts appeals of important questions, unusual circumstances, and issues for which there is a split of opinion (i.e., lower Ohio appeals courts have reached different conclusions on the same question). Criminal cases in which the death penalty is imposed automatically get appealed to the Supreme Court and certain administrative law cases also can be appealed directly to the Supreme Court. Otherwise, it is assumed that the parties received an appropriate review of their case at the District Court of Appeals level. That said, getting a case before the Supreme Court on discretionary review is a difficult task. The case has to be briefed in detail, including a brief with respect to why the court should accept jurisdiction in the first place. I don't interpret your question as asking about a contingency fee (which is impermissible in a criminal action) but I think you are in a situation where your attorney has asked for the appeals fee up front and you want it back if the case isn't accepted. Your attorney will have to work to get your case to be heard by the Ohio Supreme Court. If the court declines to accept review (which they do all the time), then the attorney should charge you for the work he/she has performed up until that point and refund the balance of any retainer that you paid. However, the attorney is entitled to be paid for the work he/she did in presenting your case to the Supreme Court. That it wasn't accepted for review does not reflect on the effort or work product of your attorney and does not mean that he/she is a bad attorney. It just means that the Supreme Court did not view your case as important enough in the overall scheme of criminal law to review yet again.
This response contemplates only the laws of Ohio and is not intended to apply to other jurisdictions. None of the information in this response should be used or relied upon as legal advice or legal opinion about specific matters, facts, situations or issues. Viewing it does not establish an attorney-client relationship between you and Sherrille D. Akin, the law firm of Isaac, Brant, Ledman & Teetor LLP, or any of its individual attorneys
I am not licensed in Ohio, so this should only be taken as general information. However, I do some appeals work. I get paid to PETITION the Supreme Court and then I get paid again to argue the case itself.
But if you don't petition, the Court definitely won't take the case.
J Charles Ferrari
Eng & Nishimura
The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
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