{"id":4528,"date":"2003-07-29T12:45:48","date_gmt":"2003-07-29T16:45:48","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2003\/07\/29\/professor-continues-to-battle"},"modified":"2011-08-05T15:00:48","modified_gmt":"2011-08-05T19:00:48","slug":"professor-continues-to-battle-new-model-rule-15-and-standard-contin-2","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2003\/07\/29\/professor-continues-to-battle-new-model-rule-15-and-standard-contin-2\/","title":{"rendered":"Professor Continues to Battle New Model Rule 1.5 and Standard Contingency Fees"},"content":{"rendered":"

<\/a>L<\/em><\/strong>ester Brickman, ethics professor at Cardozo Law School, has taken his fight to improve New Model Rule 1.5<\/a> and its treatment of contingency fees to the Rule-making authority of each State.\u00a0 Over the past few months, Prof. Brickman has sent a Letter<\/strong><\/a> to each presiding justice<\/span> urging “you and your fellow justices to decline to adopt the proposed changes to Model Rule 1.5.” (Letter posted at ethicalEsq? <\/em>by permission of the author)<\/span><\/p>\n

Brickman is a longtime foe of the use of “standard” contingency fees — because they are frequently unrelated to the risk taken and work performed by an attorney in a particular case, and therefore often overcompensate the lawyer at the expense of the injured client.\u00a0 In his <\/span>Testimony to the ABA Ethics 2000<\/a>,<\/span> <\/span>Brickman argued that current ethical standards and ethics opinions concerning the use of contingency fees were universally ignored, and that the new model rule on fees must explicitly require\u00a0that contingency fees be linked\u00a0to the lawyer’s risk and must inform clients of their right to be fully informed, so that they could\u00a0make informed choices among\u00a0fee options (such as hourly, flat or mixed fees), and negotiate the level of a contingency fee.<\/span><\/p>\n

Brickman and other consumer advocates (such as your Editor) lost this fight before Ethics 2000.\u00a0 The Commission instead proposed a Rule 1.5, later adopted by the ABA in its New Model Rules, that — according to Brickman — “trashed fiducial rights in favor of simple self-interest<\/span>.”\u00a0\u00a0 (emphasis added)<\/span><\/p>\n

To explain his argument in detail, Prof. Brickman enclosed with each Letter a copy of the page proofs of his\u00a0soon-to-be published law review article<\/span>, The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000’s Revision of Model Rule 1.5<\/span><\/em>, by Lester Brickman, 2003 Univ. Ill.L.Rev. No. 5 (forthcoming).\u00a0 Brickman notes in the Letter that:<\/span><\/span><\/p>\n

[The Article spells] out in sad detail how the ABA has abused the bar’s self-regulatory status<\/span> by urging upon courts the elimination of one of the few remaining fiducial fee protections in the codes of ethics. <\/em>(underscore added)<\/span><\/p><\/blockquote>\n

The battle<\/span> over the new model rule governing contingency fees is being fought right now across the country, on the state level<\/span>.\u00a0 As reported in our <\/span>Posting 6\/30\/03<\/strong><\/span><\/a>, Arizona recently\u00a0adopted a version of\u00a0Rule 1.5 that\u00a0considerably improves upon the Ethics 2000 proposal, while North Carolina became the first state to adopt the new rule without changes.\u00a0\u00a0 Your Editor\u00a0gave his version of the\u00a0problems with New Model Rule 1.5 in\u00a0an <\/span>Open Letter<\/span><\/a> to the FTC (HALT Forum<\/a>, “Protecting Fees Rather than Injured Clients: The ‘Standard’ Contingency Fee and the ABA,” April 11, 2002).<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Lester Brickman, ethics professor at Cardozo Law School, has taken his fight to improve New Model Rule 1.5 and its treatment of contingency fees to the Rule-making authority of each State.\u00a0 Over the past few months, Prof. Brickman has sent a Letter to each presiding justice urging “you and your fellow justices to decline to […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926,1],"tags":[],"class_list":["post-4528","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1b2","jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4528","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=4528"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4528\/revisions"}],"predecessor-version":[{"id":14209,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4528\/revisions\/14209"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=4528"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=4528"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=4528"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}