The President says that
consumers of medical services are entitled to a “patient’s bill of rights.” We hear nothing from the President, and little from Congress, however, about consumers of legal services. Patients thus need protection from doctors’ excessive fees and poor services, but clients presumably do not need protection from lawyers. This reasoning is no surprise. The President is a lawyer as are many members of Congress. Very few politicians are doctors.
Lawyers’ clients are supposed to be protected by state ethics codes, but these codes do not adequately protect clients from excessive fees, particularly when lawyers work for contingent fees.2Â A lawyer’s fee “must be reasonable” (Model Rule 1.5),3Â although trial judges almost never initiate review of contingent fees in cases before them,4Â and clients rarely challenge a fee as excessive.5Â It does not matter whether a lawsuit is an easy win and for a large amount of money. The lawyer is almost always allowed to charge one-third or more, and plaintiffs’ lawyers usually do.6Â
At least the client should get what is paid for: a lawyer devoted entirely to the client’s interests and not to his own. Unfortunately, contingent-fee lawyers sometimes have different risk preferences from those of their clients and can profit from litigation decisions that disadvantage clients.7Â Lawyers’ financial interests at times encourage them to take risks that clients would avoid, and at other times to settle too soon so they can move on to the next case. It is true that hourly billing creates conflicts of its own8Â and that clients are protected from disloyal lawyering by state ethics codes (the same ethics codes that protect clients from excessive fees). Lawyers thus must provide “competent” representation (Model Rule 1.1)9 and must avoid conflicts between their own interests and those of their clients (Model Rule 1.7(b)).10Â Lawyers who deploy litigation strategies and recommend settlements that benefit themselves rather than their clients, however, are usually only discovered and punished in the worst of cases.