Publication Date
3-2013
Document Type
Article
Abstract
Contingent fees are a relatively recent development in American law. Once banned through common law doctrines, contingent fees have become a tool that allowed delivery of legal services to those who would otherwise be unable to front attorney fees in a case.
No doubt in part because of the historic prohibition against contingent fees, and also because clients in the typical personal injury case in which they were used were not sophisticated consumers of legal services, courts, legislatures, and bar associations have since the outset heavily regulated their use? Yet, the regulation has not been Draconian. Instead, courts have balanced competing policies. For example, a client has an unfettered right to discharge counsel, yet, it is unfair to allow a client to discharge a lawyer in order to deprive the lawyer of a fee that has been earned but simply not collected. As a result, courts have permitted attorneys to recover under equitable remedies such as quantum meruit for work done prior to discharge. Likewise, courts have sometimes permitted lawyers to obtain "high" contingent fees in a particular case because they recognize that an occasional "high" fee is needed to offset the equally likely lower recovery, and thus allow for the economic operation of contingent fee arrangements. ...
In getting to that question, this Article first briefly describes the fundamental principles necessary to understand regulation of termina-, tion on withdrawal provisions in contingent fee agreements. It then describes the jurisprudence from a few key jurisdictions analyzing what has historically allowed a lawyer to withdraw but be compensated-the requirement of "just cause." Finally, it turns to a complete analysis of whether a contractual provision enhancing the ability of a lawyer to voluntarily quit a contingent fee arrangement but obtain compensation should be enforceable, arguing that as a general principle, any provision that allows for lawyers to withdraw in circumstances beyond those defined as just cause under state law, or with any compensation if done without just cause, should be unenforceable, or at least left to the legislature or other rule-making body to regulate carefully, and not left to the slow and awkward development of the common law process.
Recommended Citation
David Hricik, Dear Lawyer: If you decide it's not economical to represent me, you can fire me as your contingent fee client, but I agree I will still owe you a fee., 64 Mercer L. Rev. 363 (2013).