It is ethical to charge contingent fees as long as the rate is appropriate and reasonable and the customer has been fully informed of the availability of alternative billing arrangements. The contingent fee is the standard method of compensating plaintiffs' attorneys in personal injury and death cases. The practice of paying a lawyer a share of the recovery of damages is an invention born in the United States that dates back to the early 19th century. Jurisdictions allow contingent rates subject to the general ethical requirement that such rates be reasonable and not excessive.
In addition, federal and state laws impose a mosaic of fee percentage limits ranging from 10 to 50 percent. They provide access to the courts for victims who cannot afford to litigate against well-funded adversaries. Unlike defense attorneys who work on an hourly rate, the contingent fee lawyer is financially motivated to resolve the case as quickly as possible for the highest sum. In addition, comparing the amount of a contingent fee with the risk and effort actually made by the lawyer is a difficult task.
Many lawyers automatically charge the same standard percentage, regardless of whether a case requires a tough fight to establish liability or if it is a “hit” with a clearly guilty defendant. A contingency fee lawyer is not required to maintain contemporary time records to substantiate his work, although such records may prove useful in the event of a dispute, 8 Federal law imposes a strict limit of 25 percent, subject to criminal penalties, on fees in all cases filed under the federal tort Claims Act, 15 In cases involving minors, all contingent fees are subject to court approval on the basis of an application filed by the attorney, 16 A frequently asked question relates to the fees to a lawyer who refers a case to a trial lawyer. New York ethics rules require that such division of fees between the referring lawyer and the trial lawyer be approved in writing by the client, and that the referring attorney share responsibility and perform some work on the case, 19 As long as these requirements are met, it is not necessary that the fee be divided into proportion to the work performed by referring and litigating counsel 20 Numerous proposals have been made to regulate contingent fees. While some have suggested that courts review all contingent fees after a settlement, judicial remedies are limited and there is a strong desire to avoid turning a fee issue into a second litigation.
Some jurisdictions have imposed low fee limits, such as the 10 percent limit in New York medical malpractice cases, but such limits are unrealistic in many cases and have placed an additional burden on the judiciary to decide requests for increased fees. Such low limits can also give an unfair litigation advantage to a defendant who has the resources to spend without limit. A California proposal would require the plaintiff, at the beginning of a case, to provide the defendant with information to make an “advance settlement offer” and then limit contingency fees on any subsequent recovery to 15 percent of the defendant's offer plus the agreed fee on the excess. While certain additional safeguards may exist, it is unlikely that the contingent fee system can or should be replaced.
There is no other satisfactory method by which ordinary citizens can access the courts and have the means to fight against large, heavily funded corporations. To paraphrase Winston Churchill, a contingent fee is the worst method of compensating the plaintiff's attorney, except for all other methods. It is telling that England, which has never allowed contingent fees, is seriously considering adopting the practice. The English ban on such fees is based in part on the belief that a lawyer with participation in the outcome would not be able to give impartial advice.
However, a recent review by the English Lord Justice has concluded that, in general, contingent fees will open access to the courts and should be adopted subject to a 25 percent fee limit in personal injury and death cases, and the requirement that the client obtain independent advice regarding the fare. agreement. Green is a partner of Kreindler & Kreindler. Use of the Internet or this form to communicate with the firm or any individual member of the firm does not establish an attorney-client relationship.
Confidential or urgent information should not be submitted through this form. The Board has addressed the issue of contingent fees on numerous occasions. Recently, in case 81-1, we discovered that it would be unethical for a company to submit a contingent contract proposal that included opinions on the viability of the project. In that case, the proposal was accepted by the local government based on the engineer's condition that he would be given a letter of intent for the work stating that if the government secures funding and continues with the project, a contract would be negotiated with the engineer, but otherwise the engineer would not have entitlement to any fee or other payment.
In that case, the Board recognized that the engineer had been placed in a position of compromise and that he could no longer be impartial with regard to the future analysis of the client's interest in proceeding with the project or not. And in any case, if there are doubts as to whether a contingent fee is consistent with the best interests of the client, the lawyer should explain the existing payment alternatives and their implications. Fee Division A fee division is a one-time billing to a client that covers the fees of two or more attorneys who are not in the same firm. In circumstances where paragraph (b) requires that the basis for attorney's fees be in writing, an individualized brief specific to the particular client and representation is generally not required.
A fee division makes it easy for more than one lawyer to associate in a matter where neither of you could serve the client alone, and most often it is used when the fees are contingent and the division is between a referring lawyer and a trial specialist. The Rule does not require disclosure to the client of the participation that each attorney will receive, but it does require that the client be informed of the identity of the attorneys sharing the fees, their respective responsibilities in representation, and the effect of the bar association outside the firm on the fee charged. In many places, if a contingent fee client fires the lawyer or prevents the lawyer from taking an action that would result in recovery (and a fee), then the lawyer is entitled to the fair value of his or her services. Fee Basis or Rate When the lawyer has regularly represented a client, he will usually have developed an understanding of the fee basis or rate.
A contingent fee agreement shall be made in writing and shall state the method by which the fee will be determined, including the percentage or percentages that will accrue for the lawyer in the event of settlement, trial or appeal, litigation, or other expenses that will be deducted from the recovery, whether such expenses will be deducted before or after the recovery is calculate the contingent fee, and whether the customer will be responsible for the expenses regardless of the outcome of the matter. In general, the terms of a contingent fee are a matter of contract between the lawyer and the client, although states may limit the types of cases in which a contingent fee is not allowed and may limit the percentage. Unless there are unique aspects of the fee agreement, the lawyer may use a standardized letter, memo, or pamphlet that explains the attorney's fee practices and outlines the practices applicable to the specific representation. Payment Terms An attorney may demand the advance payment of a fee, but is required to return any unearned part.
Such publications would explain, for example, the applicable hourly billing rates, if billing based on an hourly rate is contemplated, and would indicate what charges (such as filing fees, transcription costs, duplication costs, long-distance telephone charges) are imposed in addition to hourly charges. . .
