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

April 1, 2005

ATLA Condemns Standard Contingency Fee

Filed under: pre-06-2006 — David Giacalone @ 11:48 pm

– an April 1st dream by Prof. Yabut

In a press release made available late this evening (April 1, 2005), the American Tort Lawyers Association announced the adoption of new ethical standards that should mean the end of the Standard Contingency Fee among its members.    The press release explained:

Jack Cliente, ATLA’s consumer rights ombudsman, said “We’re tired of being known as the “At-Least-a-Third Law Association.” A small but committed group of members were able to convince their colleagues that their ethical duties were inconsistent with the automatic application of a “standard” percentage fee.

one third gray Cliente explained that the percentage fee charged should reflect how likely the client is to win, how much money is likely to be rewarded and collected, and how much work and expense the lawyer is likely to put into the case.  At the press conference, Cliente frequently quoted trial lawyer and former Florida Bar president Rutledge R. Liles. For example:

“While it is easy to defend the philosophy of the contingent fee, it is impossible to defend its abuses.  . . . 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.”

As of today, April 1, 2005, all ATLA members must give to each client, and thoroughly explain and implement, an Injured Consumers’ Bill of Rights for Contingency Fees, which lawyer and client must sign.  At the core of the Bill of Rights is the requirement that a lawyer take a list of enumerated factors into account in evaluating each client’s case, and discuss each factor with the prospective client, before they negotiate and agree upon the percentage fee to be charged in a contingency fee agreement.

Cliente noted that this position (although now mostly “honored in the breach”) is the profession’s traditional approach to the use of contingency fees.

    • Your editor believes the new ATLA requirements are a great start toward fulfilling the admonition in ABA Ethics Opinion 94-389 that “any lapse from the applicable requirements by some members of the profession simply suggests that the profession should redouble its efforts to assure that the ethical obligations associated with entering into a contingent fee arrangement are fully understood and observed.”

complaint billFN The Bill of Rights appears to draw heavily on the requirements set forth in ABA Formal Ethics Opinion 94-389, while also using concepts found in Rule 4-1.5 of Florida’s Bar Code and in the Bill of Rights that appeared in HALT‘s The Legal Reformer (Dec. 1997).  [Ethics Opinion 94-389 is not available online without a subscription, but is discussed here.] Cliente stressed that ATLA is not affiliated with another bar group using the same acronym, which has yet to condemn standard contingency fees, although it has publically asserted — when faced with reform proposals — that such fees should vary depending on the riskiness and complexity of the individual case.

Editor emeritus of this weblog, ethicalEsq, was certain the Press Release must be an April Fool’s joke, but ombudsman Cliente has assured us that the entire leadership of his organization is now strongly behind the reform measure.   skepticalEsq concluded ATLA had discovered plans to clone Judge Preska and put her in charge of regulating contingency fees. [for more, see ethicalEsq posts such as here and here, and especially our four-part essay on the ethics and economics of the standard contingency fee.]

more whimsy than folly

Filed under: pre-06-2006 — David Giacalone @ 1:36 pm


diner dusk

her twenty-something hips

winding minds counter clockwise






                                                                                 a   y








birthday balloons the one that doesn’t burst







pea soup fog

the sound of a map

unfolding beside me







     “pea soup fog” * “diner dusk” from

              Haiku Sun  (Issue X, Jan. 2004) 



and, an encore:

       he shouts
faith healer’s



from dagosan                                               


April 1 —

no one here

to make a fool of me






first scull of the year

arms ache

just waving






last day of March

her pink slip’s

no prank



[April 1, 2005]




tiny check The usual savvy suspects are taking part in Adam Smith Esq‘s

The Future of the Billable Hour.”  As usual, almost everyone

blames the method of billing rather than the motives of the biller.

It is an awful lot like blaming the automobile for injury done from

collisions, rather than blaming the reckless ness or negligence (or

intent) of the driver (or the driver’s employer).


complaint bill As I’ve discussd in my piece on chronomentrophobia 

(where you can find citations and links), and have probably mentioned


[1] From the client’s perspective, there is nothing wrong  

with the billable hour fee system that cannot be cured by

the lawyer merely doing what is required of him or her ethically

and as a fiduciary: (a) following the standards embodied in

Rule 1.5(a) of the Model Code — e.g., basing the fee on the

experience and capabilities of the lawyer, complexity of the matter,

etc.; (b) performing in an efficient and competent manner; and

(c) keeping the client well-informed.


 [2] From the perspective of the overworked associate or partner,

there is nothing wrong with the billable hour fee system that is not

very likely to be carried over to any alternative billing arrangements,

if the firm expects the shift to be made without reducing its income

or profits. 


[3] Clients expect “alternative fee arrangements” and “value billing”

to result in lower overall fees, not higher ones.

unfair methods of evolution

Filed under: pre-06-2006 — David Giacalone @ 1:45 am

No matter your take on evolutionary biology (or on the role of government in  dinosSG

the marketplace), if you’re looking for signs of intelligent life on April Fool’s Day,

you should click on over to the special report by the American Antitrust Insitute‘s

Science Correspondent, “Antitrust Controlled by Jerks” (AAI, April 1, 2005). 


You’ll discover whether antitrust history demonstrates an “evolution by creeps, or

evolution by jerks.”  And, among other artifacts, you’ll find Larry Summers

speculation on “why there are so few women heading up the antitrust departments

of major law firms.”


joker neg AAI President Bert Foer isn’t revealing the identity of the Science

Correspondent, or his sources.  Feel free to speculate.



on the beach

the tracks of two

lounge chairs

                      John Stevenson

                               from Quiet Enough



tiny check  Stop by George M. Wallace’s neck of the woods today — there  joker gray 2

should be an April 1st celebration at A Fool in the Forest.


tiny check  You know Steve Bainbridge must be quite rattled, if he forgets

to rattle his Tin Cup after an auto break-in.   You might want to pay a visit and

help Prof. B. pay his deductible.



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