concurring specially.
Contingent: Possible, but not assured; doubtful or uncertain; conditioned upon the occurrence of some future event which is itself uncertain, or questionable. Synonymous with *614provisional. This term . . . implies that no present interest exists, and that whether such interest or right ever will exist depends upon a future uncertain event.1
As made clear by this definition, it would strain credulity to urge that the fee arrangement between Fogarty and his trial counsel — which provided for a fee of $25,000, payable in advance, to be reduced to $10,000 if the charges against Fogarty were dismissed and a new suspect identified — was not contingent. Counsel’s $25,000 fee in this case was contingent upon Fogarty’s prosecution proceeding to trial. If that contingency was not satisfied, then counsel would have been compelled to refund $15,000 already paid to him, reducing his fee by three-fifths. The majority opinion, therefore, should not be misunderstood for the proposition that the fee arrangement in this case was not contingent. Rather, the majority opinion must be read more narrowly — the fee arrangement in this case, although contingent, has not been shown to be improper.
The relevant ethical canons and commentaries based thereon establish two principles regarding contingency fee agreements in criminal cases: (1) It is absolutely prohibited to make an additional fee payment contingent upon the acquittal of an accused;2 and (2) “An agreement for payment of one amount if the case is disposed of without trial and a larger amount if it proceeds to trial is not a contingent fee but merely an attempt to relate the fee to the time and services involved.”3 The absolute prohibition against making additional fees contingent upon acquittal is premised upon the fact that (as pointed out by the majority) in criminal cases, there is no res from which a contingent fee can be deducted,4 and also upon concerns that such agreements may be detrimental to both the administration of justice and the best interests of criminal defendants.5
As noted, though, a criminal defense lawyer is permitted to structure his fees to provide for one amount if a case is resolved without going to trial, and another, larger amount if the case does go to trial. For this reason, criminal defense lawyers are allowed to set “escalating” fee scales, which typically specify one fee to shepherd a *615case though its preliminary stages, and another fee which must be paid if the case actually proceeds to trial.6 In these permissible “escalating” fee arrangements, whether a criminal defense lawyer is paid his or her highest fee is contingent upon the case going to trial. This same contingency also provided the basis for Fogarty’s fee arrangement with his counsel. It is true that, unlike an “escalating” fee scale, Fogarty’s fee arrangement required full payment in advance. However, I do not believe that distinction, standing alone, is sufficient to place the fee arrangement in this case within the scope of prohibited contingency agreements, and therefore I must conclude that Fogarty’s fee arrangement with counsel fell within the limited scope of permissible contingency agreements in criminal cases.
Decided March 8, 1999. Rich & Smith, Randolph G. Rich, David L. Whitman, for appellant. Daniel J. Porter, District Attorney, for appellee. John C. Pridgen, District Attorney, Cordele Circuit, Gregory R. Sturtevant, Assistant District Attorney, Clayton Circuit, Joseph L. Chambers, Sr, Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, Summer & Summer, Daniel A. Summer, Elizabeth B. Reisman, amici curiae.See ABA Standards for Criminal Justice, Standard 4-3.4.
Black’s Law Dictionary, p. 290 (5th ed. 1979).
ABA Standards for Criminal Justice, Defense Function Standard 4-3.3; Rules and Regulations for the Government of the State Bar of Georgia (“Georgia Bar Rules”), Directory Rule 2-106 (c).
Id.
See Georgia Bar Rules, Ethical Consideration 2-20.
See Moore, Jr. & O’Brien, Of Clients & Fees: Ethical Issues for Criminal Defense Attorneys, Georgia Bar Journal (February 1999) at p. 13 (noting concerns that such agreements could incite unscrupulous legal practitioners to usurp the truth seeking function of the criminal justice process).