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

August 16, 2004

inform to reform

Filed under: — David Giacalone @ 11:36 pm


to reform, inform

contingency fee reform is

We interrupt our poetry for a pet project: contingency fee reform.  Tomorrow, Point of Law is beginning a Featured Discussion on this topic, where “Two of the nation’s leading experts on legal ethics, Lester Brickman and Richard Painter, will discuss potential ways to improve the legal system through reforming the way lawyers charge contingency fees.”

  • Despite it’s current haiku format, you’ll find much on the standard contingency fee at this website, as it has been an obsession of the Editor for years.  In the posting Suggestions for the ABA Contingency Fee Task Force  (Jan. 7, 2004), there is a good summary of ethicalEsq‘s  position and arguments, with many links.

I’m no ethics professor or bigwig (I only play one on the net), but I think I know the very best and quickest way to achieve contingency fee reform: inform the public — let consumers/clients know (1) they can and should negotiate for a fair contingency fee; (2) the fairness of the fee depends on the risk the lawyer is taking of working without being paid; (3) the lawyer owes the client a good faith estimate of the likelihood of success and the amount of work the law firm is likely to do before a fee is set.

too much$:   I have far more faith in the power of informed consumers (and the forces of competition that it can unleash), than I have in the legal profession’s ability or willingness to reform contingency fee rules significantly or effectively — especially since it must be done state by state, in the face of powerful interests on both sides of the tort bar.  However, once even a relatively small share of consumers know their rights, at least a few p/i  lawyers will start open fee competition for clients through tv and yellow page ads, and the standard contingency fee racket will be doomed

  • If professors, pundits, political opportunists and consumer protectors had trusted the market and consumers, and started a meaningful informational campaign a decade ago, the Point of Law discussion would be merely academic by now.  The solution isn’t complicated rules and voluminous journal articles, it is easy-to-understand information. 

  • So, let’s use the web and all media platforms to have op/ed and news articles published; let’s get public service announcements and brochures made and placed; and let’s press state bars or courts to create (and maybe impose) statements of client’s rights.  The message to every potential p/i plaintiff is simple: “Don’t be a sucker by just handing over one-third; demand information and negotiate from strength! 

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