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July 16, 2003

A Bar President Writes About Contingency Fees

Filed under: pre-06-2006 — David Giacalone @ 2:27 pm

I‘ve wanted to quote publically from an article by Rutledge R. Liles for a long time, and it just occurred to me that I have a weblog that will let me do just that. Liles was president of the Florida Bar when he wrote the artcle entitled Professionalism and the Contingent Fee: When is Enough Enough?, for The Florda Bar Journal (Jan. 1989, at 5). [Given its vintage, the article is not available online, but can be ordered through the Journal archives on the Bar site, or by email to gbusch -at- .]

After a successful fight against an early tort reform proposal called Amendment 10, Liles wanted to discuss a topic that came up often when he spoke against Amendment 10 — “The contingent fee and perceived abuses.” Here are some excerpts [bold emphases added]:

  • “Judging from the many comments I received during the past several months, the contingent fee, or perhaps more accurately, the size of the percentage of fee that it often generates, causes considerable hostility among the public. They constantly hear and read of lawyers retaining 40 percent or 45 percent of a damage award as a fee which, after adding costs, results in less than half of the award findings its way to the client. This distribution creates the impression of greed.”
  • “Once explained, I seriously doubt that anyone would dispute the philosophy behind the contingent fee. It is the application of the concept on a case-by-case basis that causes the perceived — and sometimes real — problem. And it is in the context of professionalism and of monitoring legitimate criticism that we must reexamine the applied philosophy of the contingent fee.”
  • Drawing upon personal experience, I recall a time when one-third and even less was the ’standard’ fee. Over the years, it began to move upward into the 40 percent range with some lawyers charging even more. . . . What has caused this evolution from a fractional percentage of the recovery to one approaching an equal partnership [with the client]?
  • Experienced trial lawyers will tell you that while there may be cases that ultimately justify a 40 percent contingent fee — complex products liability and medical malpractice — there remain many, many cases that clearly do not.”
  • While it is easy to defend the philosophy of the contingent fee, it is impossible to defend its abuses. We must as professionals address these abuses and the process must start in our own individual practices. The contingent fee should be reasonable under the circumstances of the given case. The contracted fee should be a guide not a mandate.”
  • It has been accurately said, in justification of the contingent fee, that it is the “poor man’s key to the courthouse.” Professionalism, however, demands that we be ever mindful that keys are made of brass — not solid gold.”

Are there any other bar leaders willing to be as honest as Rutledge Liles?

P.S. It is probably no coincidence that Liles’ state, Florida, is the only state in the nation with a Statement of Client’s Rights for Continency Fees. Among other information, clients in Florida must be told that there is no set percentage for a contingency fee and they are free to negotiate the fee level with their lawyer.

tiny check See our version of The Injured Consumers’ Bill of Rights for Contingency Fees, which is based on the requirements set forth in ABA Ethics Op. 94-389 and in the Florida Bar’s fee rules.

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