f/k/a archives . . . real opinions & real haiku

June 6, 2003

Let Your Fingers Walk for Me

Filed under: pre-06-2006 — David Giacalone @ 9:33 am


Got a few a minutes for truth and justice?  Please grab your local Yellow Pages directory and open to Lawyers.  I’d like to know how many of the ads for personal injury lawyers state the percentage or share of the contingency fee to be charged or say the firm will negotiate fee options with the client.


You see, I’ve been challenged to demonstrate my claim that the average p/i client is confronted by virtual silence about fee levels and is given only one real choice — accepting the local Standard Contingency Fee rate (and therefore handing over to the lawyer one-third or more of any injury award, no matter how much risk or work is involved for the lawyer).


I can’t do a major scientific study, but I’d settle for a small poll.  Given the rabid Yellow Pages rivalry for injured clients, my notion (after a decade as a crack antitrust theorist), is that we’d see fee levels mentioned in those fullpage ads, if lawyers thought that even a small part of the public expected to be able to shop or negotiate for percentage fees.   We’d also see fee levels mentioned if a serious (hungry?) competitor were willing to break ranks with his or her colleagues and attract clients with lower fees.  By never mentioning the size of a fee, the inevitability of the local Standard — which any adult walking down the street can quote you — is emphasized, as if it were etched in stone.


A May 26th article from the New York Times mentions a study by University of Virginia law professor Jeffrey O’Connell, which found that only 7 of more than 1,400 advertisements by lawyers in twelve big city Yellow Pages directories stated the percentage to be charged.  The average fee in those 7 ads was 31 percent (and I bet that included malpractice and disability claims that are capped at 25% by law).  O’Connell’s study sounds about right to me, although I have looked through many telephone directories from across the nation, at my local Library, and have never yet seen a fee level stated.


ethicalEsq? would like to know what you find in your home town Yellow Pages or similar telephone directory. Drop us a Comment or use our “Suggestions” Box to let us know



  • how many fullpage ads you found for p/i lawyers seeking injured clients (don’t forget the front or backcover)
  • how many of the ads mention the percentage fee to be charged
  • how many of the ads mention a sliding scale or the opportunity to negotiate fees
  • how many offer to let clients pay on an hourly basis rather than with a no-win/no-fee contingency arrangement

If you know of any studies on this topic, let ethicalEsq? know about them, too.  Thanks in advance for your help.


P.S.  Whatever the global numbers may be as to how many p/i lawyers only offer their clients the local Standard fee, I believe (as does ABA Formal Ethics Opinion 94-389) that every lawyer has an ethical obligation to fully inform every p/i client of the basis for the percentage offered by the lawyer in that case (e.g., likelihood of success, range of potential award, amount of lawyer time likely to be needed — in sum, the overall risk the lawyer believes he or she will be taking).   In addition, the lawyer must give the client the option of a number of possible fee arrangments, including paying a fixed hourly fee. 


ethicalEsq?ethicalEsq?



Welcome to Visitors pointed this way today by Overlawyered.com, and special thanks to Walter Olson for giving us such good coverage (despite my leftist leanings).


Gosh, the Blawgosphere is sure a friendly neighborhood!  Thanks to my new net neighbors at How Appealling  and The Curmudgeonly Law Clerk for letting me crash the party. 


And, Ernie Svenson of Ernie the Attorney fame toiled late into the evening to post me a plug.  Thanks, and keep those car windows up, Ernest.

6 Comments

  1. I think that many lawyers do not post their rate in yellow pages ads because of fear of repercussions from the bar. The bar associations are so anal about ensuring that ads are not deceptive that if I were to run an ad saying “Ask About My 15 percent Contingency Program in PI cases,” (which might only apply to certain simple cases which can be settled without going into suit – something which I would explain in my office), the Bar would probably claim that my ad was deceptive. That is why I believe that lawyers don’t advertise rates in ads.

    Comment by Carolyn Elefant — June 8, 2003 @ 12:46 pm

  2. I think that many lawyers do not post their rate in yellow pages ads because of fear of repercussions from the bar. The bar associations are so anal about ensuring that ads are not deceptive that if I were to run an ad saying “Ask About My 15 percent Contingency Program in PI cases,” (which might only apply to certain simple cases which can be settled without going into suit – something which I would explain in my office), the Bar would probably claim that my ad was deceptive. That is why I believe that lawyers don’t advertise rates in ads.

    Comment by Carolyn Elefant — June 8, 2003 @ 12:46 pm

  3. Interesting point, Carolyn. I have a few thoughts:
    (1) If that’s your fear, why not say “we tailor our fee to your case, with percentages from 15 to 33%”? One reason I ased about fullpage ads is that there’s plenty of space to explain the details, if the lawyers wanted to, and there’s already lots of tiny print in their footnotes.

    (2) If the bar did claim your ad was deceptive, it would almost certainly do so to dampen price competition, not to assure truthful advertising. I’ve been told by discipline committee staffers that so many complaints by lawyers come from competitors trying to squelch competition, that they ignore virtually all lawyer-initiated complaints.

    (3) I’ve been an advocate of lawyer advertising since my law school days. My FTC antitrust experience taught me that bar associations said they opposed advertising to uphold the so-called “dignity of the profession” but they mostly opposed and feared competition. Once the Supreme Court and the federal antitrust agencies said truthful lawyer ads could not be banned, the same bar associations became hyper-vigilant of any ads that did run for the same reasons. Of course, to a consumer protection lawyer, the typical p/i fullpage ad is already plenty misleading, and those footnotes are just too small to past muster.

    (4) Finally, in my opinion, most p/i firms do not advertise lower rates because they do not want to bring price competition into the market and do not want to anger their colleagues who like the good thing they have going — there’s too many rivals and too much fat in the Standard rate as applied to many clients to introduce fee competition. That would mean fewer dollars overall for everybody — and fewer chances of hitting the jackpot without any heavylifting.

    Comment by David Giacalone — June 8, 2003 @ 1:47 pm

  4. Interesting point, Carolyn. I have a few thoughts:
    (1) If that’s your fear, why not say “we tailor our fee to your case, with percentages from 15 to 33%”? One reason I ased about fullpage ads is that there’s plenty of space to explain the details, if the lawyers wanted to, and there’s already lots of tiny print in their footnotes.

    (2) If the bar did claim your ad was deceptive, it would almost certainly do so to dampen price competition, not to assure truthful advertising. I’ve been told by discipline committee staffers that so many complaints by lawyers come from competitors trying to squelch competition, that they ignore virtually all lawyer-initiated complaints.

    (3) I’ve been an advocate of lawyer advertising since my law school days. My FTC antitrust experience taught me that bar associations said they opposed advertising to uphold the so-called “dignity of the profession” but they mostly opposed and feared competition. Once the Supreme Court and the federal antitrust agencies said truthful lawyer ads could not be banned, the same bar associations became hyper-vigilant of any ads that did run for the same reasons. Of course, to a consumer protection lawyer, the typical p/i fullpage ad is already plenty misleading, and those footnotes are just too small to past muster.

    (4) Finally, in my opinion, most p/i firms do not advertise lower rates because they do not want to bring price competition into the market and do not want to anger their colleagues who like the good thing they have going — there’s too many rivals and too much fat in the Standard rate as applied to many clients to introduce fee competition. That would mean fewer dollars overall for everybody — and fewer chances of hitting the jackpot without any heavylifting.

    Comment by David Giacalone — June 8, 2003 @ 1:47 pm

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