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July 29, 2003

Brickman Letter to Chief Justices on New Model Rule 1.5

Filed under: — David Giacalone @ 10:30 am

[Editor’s Note: This letter appears by permission of its author, Lester Brickman, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.  It was sent to the chief or presiding judge/justice of each State, in the Spring/Summer of 2003.]

To: Chief Justice, __________ Supreme Court

Dear Chief Justice:

     The American Bar Association has recently approved changes in the Model Rules of Professional Conduct recommended by the Ethics 2000 Commission. One of the changes relates to Model Rule 1.5 which deals with fees.

     I am writing to urge you and your fellow justices to decline to adopt the proposed changes to your version of Rule 1.5. In the event you have already done so, then I am urging you to reconsider those changes.

     The changes proposed to Rule 1.5 eliminate a long standing fiduciary right of clients — albeit one that is honored mostly in the breach: the right of a client, especially a personal injury claimant, to be given the information necessary to make an informed choice among alternative fee structures even by a lawyer who charges standard contingent fees.

     The Commission could have taken the professionally responsible route by candidly acknowledging that current ethical admonitions have fallen into desuetude and therefore urging the legal profession to honor obligations adjunct to its largely self-regulatory status. Had it done so, it would have reinforced prior ABA ethical opinions holding that clients have a right to make an informed choice with regard to fee structures. Instead, the Commission and the ABA trashed fiducial rights in favor of simple self-interest.

     In addition to the omitted language, upon recommendation of the Commission, the ABA adopted other changes to Rule 1.5 which, by stealth, are intended to further weaken the “reasonable fee” requirement.

     I have closely analyzed these changes to Rule 1.5 in an article that will be appearing in the University of Illinois Law Review. Since it will not “hit the street” until approximately August [ed. note: it is now available here], I am taking the liberty of enclosing page proofs of the article, accompanied by the following roadmap:

pp. 101-103 – Introduction

104-111 – Discussion of fiduciary obligation and it origin

111-112 – Derivation of the fiduciary obligation of the lawyer

112-116 – “Special Rules” that favor lawyers’ interests

116-119 – The relationship between legal fees and fiduciary obligation

119-135 – Discussion and critique of the changes to Rule 1.5

135-136 – Conclusion

     Boiled down to its core, pp. 101-103 and pp. 119-135 spell out in sad detail how the ABA has abused the bar’s self-regulatory status by urging upon courts the elimination of one of the few remaining fiducial fee protections in the codes of ethics.

     No state supreme court that takes seriously its status as a fiduciary for the public interest when implementing its authority to regulate the practice of law can legitimately endorse this assault on one of the last remaining fiduciary fee protections for mostly unsophisticated clients.

     Accordingly, this Court should, upon reflection, decline to amend its rules to include the proposed changes to Rule 1.5 or, in the alternative, rescind any such adoption.

     I remain at the Court’s disposal if further elaboration is requested.

Sincerely yours,


Lester Brickman

Professor of Law

[original sent with Enclosure: The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000’s Revision of Model Rule 1.5, by Lester Brickman, 2003 Univ. Ill.L.Rev. No. 5]

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