Legal Malpractice Forum
| Jurisdiction | United States,Federal |
| Citation | Vol. 10 No. 6 Pg. 1359 |
| Pages | 1359 |
| Publication year | 1981 |
1981, June, Pg. 1359. Legal Malpractice Forum
Whatever side of the philosophic debate about contingent fee arrangements on which you find yourself, one practical consideration seems unassailable: contingent fee arrangements allow greater access to the legal system by people who might not otherwise have access to a lawyer or perhaps to the courts. This brief article discusses some ethical considerations in two specific situations in which virtually impecunious people used contingent fee arrangements to pursue litigation otherwise beyond their financial means.
In the first case, a contingent fee arrangement was established for a client who felt he had been the target of age discrimination. In the second case, the fee agreement was for a widow in a third party action sounding in wrongful death.
The contingent fee arrangement in civil cases has long been commonly accepted in the United States for proceedings to enforce claims.(fn1)
Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, when justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case(fn2) with any client who, after being fully informed of all relevant factors, desires that arrangement.(fn3)
In the first case, a 52-year-old man had worked for an automobile manufacturer for twelve years and was fired from his job. The client felt that he had been discriminated against due to his age. He had pro se pursued his administrative relief under the Age Discrimination in Employment Act and exhausted his administrative remedies without avail.
The client retained an attorney who, after evaluation of the case, decided to expand the client's statutory age claim(fn4) by including tort and contract claims. The attorney, concluding that the tort and contract claims were as strong as the statutory claim, was faced with the dilemma of how to contract with his client fairly and ethically.
The problem faced by the attorney was that if he succeeded on either the contract or tort claim, he would not be able to recover attorney's fees from the defendant. If the client prevailed on just the statutory claim or on multiple counts, the court could award attorneys' fees. The fee agreement was drawn and contained the following pertinent language:
It is agreed that our attorneys' fees for this...
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