I hope that David Giacalone at ethicalEsq will excuse my tardy response to his post of yesterday morning, responding to a post of mine. Here’s why I’m late. As I was reading his post, I suddenly found that I had become entangled in all the law firm/airplane analogies that were flying back and forth between our sites. One of the hazards of weblogging, I suppose, but even so, it can be very dangerous to become tangled in a web of analogies, and I couldn’t find a way to shake free. As it happened, I was trapped at my desk until sometime late in the afternoon, when my partner found me and had to summon the Fire Department to get me extricated. Thankfully, I seem to be fine today, only slightly bruised and feeling just a little tired.
In any case, I want to thank Mr. Giacalone (I think) for his comments about my law firm’s website. As he may have surmised, I created the website myself (although my partner, who is also my wife, helped me choose the colors). No expensive website designers for us! As for the missed opportunity Mr. Giacalone mentioned of making use of some sort of warrior theme (along the lines of what Venomous Kate has done with snakes, or the Captain's Quarters with ships), I vaguely recall that we weren’t able to find a warrior-themed FrontPage template that suited us. Oh well.
But I’m taking far too long to warm up to the real purpose of Mr. Giacalone’s post, which wasn’t merely to offer suggestions about my law firm’s website. Indeed, for anyone who followed the thread (and more than a few did), they must have been surprised that Mr. Giacalone was able to stumble across a comment about law firm management--by Larry Bodine at LawMarketing Blog--and then transform my own jesting riposte into a suddenly-serious discussion about of the ethics of contingency fees (and the issue of whether I, personally, am an ethical lawyer).
I suppose it’s not surprising that the “metaphor that crashed on takeoff” suddenly exploded, given that one of the stated purposes of Mr. Giacalone’s weblog is to explore the ethics of contingency fees. All well and good, except that it’s not the focus of mine. Call me a coward, but I’m not going to take Mr. Giacalone’s bait, at least not right now, except to say the contingency fee system isn’t broken and doesn’t need to be fixed. In the real world, injured people who need a voice to speak for them often don’t have the means to pay that voice by the hour. So some of them agree to pay when the case is over, happy to allow their lawyer (that is, me) to assume the risk that the case might yield nothing at all, in which case I’ll be paying the costs. All things considered, I usually charge a third, sometimes more, sometimes less. (With that said, I recognize the benefits of Mr. Giacalone’s weblog and his commentary on legal ethics, and look forward to reading it. However, I’m not going to direct my clients to his site, as he suggests in his post, before they sign with me. Sorry.)
That’s my response to Mr. Giacalone for now, except to offer this closing aside to any defense lawyers who’ve made it this far: Sorry, but we’ve suddenly come to the end of this post, and there’s nothing here about you. Please return another day. In the meantime, you should know that just as I stand ready to defend my own fee practices, I don’t begrudge you the opportunity to make a living either. Bill by the hour, set your rates at whatever the market will bear, go absolutely wild. At the Legal Underground, all lawyers are my friends, even defense lawyers--as long as you can put up with a little teasing from time to time.
Just a few Comments: (1) When I started my posting in response to your SWA musing, my only purpose was to have some fun; it wasn't until I saw your FAQ Page on personal injury cases that the very unfun topic of unreasonable contingency fees rose its ugly head -- and I felt an obligation to address it;
(2) I am most definitely not against all contingency fees (nor am I a defense lawyer! or a tort reformer); my problem is with using a standard fee no matter how little risk the lawyer is taking of not being compensated adequately. Doing that, especially when you only take cases that look like they have a good chance of succeeding, often overcompensates the lawyer, which means it shortchanges the client. ATLA and Public Citizen have both said that the fee percentage should relate to the RISK involved -- but, then, virtually no p/i lawyer does it (except to increase the standard fee for more complex cases, or when the occasional savvy client insists on negotiating).
(3) Saying that many clients need to pay on the contingency fee basis, after an award is received, is totally different than saying how much that fee should be.
(4) Each client's case needs to be treated separately and the percentage fee charged must be related to the risk in that case, after fully informing the client and negotiating on the fee level. That is the ethics issue. I'll put some links up in a reply posting at ethicaEsq later today, in case you or your clients are interested. ABA Formal Ethics Opinion 389 lays all this out clearly and convincingly, interpreting the same ethical rule on fees that exists in Illinois and Missouri.
(5) I'm disappointed that you don't want your clients apprised of their rights before signing a fee agreement with you -- but, don't get me started on fiduciary obligations.
I'll still be looking to your weblog for entertainment and perspective.
Posted by: David Giacalone | January 24, 2004 at 01:43 PM
P.S. Putting the ethics of contingency fees aside, I just read again your accusation that I "was able to stumble across a comment about law firm management--by Larry Bodine at LawMarketing Blog--and then transform my own jesting riposte into a suddenly-serious discussion about of the ethics of contingency fees (and the issue of whether I, personally, am an ethical lawyer)." The sentence is not the least bit entertaining.
As you know, I wrote in response to Larry's SWA posting before you did; I didn't "stumble across" his posting -- I frequently check out his site from both Detod and Daily Whirl. And, I surely didn't "stumble" across your "riposte" -- I merely clicked on my TrackBack link to see who had mentioned my first SWA blurb.
Also, as I said in the previous Comment: I was planning to join in the fun over air line and air force metaphors. In fact, I had never been to your weblog before and didn't know you were a p/i lawyer, until I clicked on the link to your firm's site. Then, while meandering around your firm website, I ran into the standard-contingency-fee issue.
Upon further scanning of your weblog, it's clear you frequently write to justify the current p/i system (which is built on the standard contingency fee model). You also combine humor with serious topics (or hide defensiveness with humor). So, I don't see how you can complain about my response discussing contingency fees. Perhaps I should have made it a separate posting, but I instead used the bullet-footnote because the topic was not the original or primary focus of the SWA posting.
I'm anxiously awaiting your explanation of the legal ethics of using the standard contingency fee, as well as entering into such agreements wiithout fully informing your client of factors relevant to the reasonableness of the percentage charged. We don't need more p/i sloganeering about "the key to the courthouse." The issue is not whether contingency fees should exist at all; it's whether the key should be brass or gold.
Posted by: David Giacalone | January 24, 2004 at 04:12 PM
David: Sorry that you are annoyed, but I stand by what I wrote. However, you can take comfort in the fact that there are certain points of agreement between us. For example, you quoted a passage that I wrote, then stated that it was "not the least bit entertaining." That’s one point I agree with, since in the quoted passage, I expressed surprise that you would raise the issue, on your weblog, of whether I, personally, am an ethical lawyer. I mean, we can be blawging friends and all—-but c’mon, David, I don’t know you, and you don’t know me. You have no basis on which to question my ethics, and though you are free to do so, it doesn’t seem like a good weblogging practice to me. (As authority, I’ll cite your own weblog, which states that it is "not a forum for airing complaints against individual lawyers, law firms, or judges." Is that why you moved this discussion over here?)
To some extent, I feel like your two comments, which are sort of harsh, in my opinion, have me in an "adopted admission" sort of position—-if I don’t deny it, my silence will be taken to mean I think you’re right. So I’ll state the obvious: I don’t agree with you. For example, I disagree with your assertion that I "don’t want [my] clients apprised of their rights before signing a fee agreement." Unfair, David! What I said was, I don’t want to send my clients to *you* to counsel them on whether to sign a fee agreement with *me.* Moreover, how can you possibly state, in public, on my weblog, that I don’t "fully inform" my clients about fees? How could you possibly know what my personal practices are? Do you think my discussion with my clients ends with my telling them to review my firm website's "personal injury FAQ"? What bosh. The majority of my clients don’t even own a computer.
Again, I’ll repeat what I said before, that discussions about legal ethics are very important (indeed, critical), and that I look forward to reviewing your weblog. Still, your comments seem way out of proportion to anything you could have possibly seen on my firm’s website. (I’m not the only lawyer who works on a contingency fee basis, and I’m not the only p.i. lawyer with a law firm website. Why are you so irritated with me?) To be frank, all this seems a little weird, though I sense you might have a good understanding as to why a little controversy never hurt anyone’s weblog (cf. Eminem, “Without Me,” The Eminem Show [Explicit Version] (2002)). It ain’t hurting mine, either!
Posted by: Evan Schaeffer | January 24, 2004 at 06:47 PM
Evan, I'm not angry with you and I agree that we should not be making blanket statements about eachother's intentions or conduct. If my hackles were raised, it was by your suggesting that my posting was made in bad faith, with the primary purpose of attacking your ethics.
My site doesn't need any "controversy" hits, but I was trying to steer some traffic your way, since you're a weblog neophyte! ;-)
Of course, you're not the only lawyer using contingency fees or with a website. But, (1) I just happened to end up at your website, and happened to be pointing my readers to it. (2) You website mentioned fee levels and did so in a context that looked like the use of a "standard" fee. And, (3) it also mentioned only taking cases that are likely to win -- underlining a contention I've been making whenever p/i lawyers try to say that using the standard fee level (usually the maximum allowed in the jurisdiction) is necessary to subsidize riskier cases.
You keep saying that I raised the issue of YOUR being an ethical lawyer. Look at what I said:
* "On a more serious note, I checked out Evan's Personal Injury FAQ page and made a discovery that clients should not be at all happy about -- although S&L "will not take your case unless we think it has a good chance of success," it "typically" charges a 33.3% fee, with 40% taken for "more complex kinds of cases." The spoils of victory are indeed great for the swashbuckling esquire -- and, when a standard contingency fee is used, not related to the risk incurred by the lawyers. I wish all personal injury clients got to read this or this before signing their contingency fee agreements. It may not be entertaining reading, but it is educational."
That bullet describes what your website says about fees, and states that the use of standard contingency fees does not take risk into account. It points to two pieces that say a fee can be excessive when the percentage charged is higher than warranted by the risk taken.
It makes no conclusion about how you treat any particular case. It does not say you are unethical -- only you know whether you charge fee levels that correspond to the apparent risk. You seem to be accusing yourself.
Becaused I can't possibly know for sure, I was not trying to say that "you" do not fully inform your clients when I said that "I'm anxiously awaiting your explanation of the legal ethics of using the standard contingency fee, as well as entering into such agreements without fully informing your client of factors relevant to the reasonableness of the percentage charged" The "your client" would have been better stated as "a client" -- it was meant to refer to the clients of all lawyers who use a standard contingency fee. Almost by definition, such lawyers are not "fully" informing their clients (under the interpretation set forth by Opinion 389, many other sources, and myself), because they are not giving them a chance to negotiate the fee level to correspond to the perceived risk. I merely asked for an explanation of their ethical position on the topic.
Of course, I never asked to personally counsel your clients -- I did express the hope that they read general information about their rights and about the ethical rules concerning the use of contingency fees before entering into such agreements. What are you afraid they'll learn?
As to "airing a complaint about an individual lawyer" -- you know what that statement means on my website (clients can't use my site to complain about a particular lawyer). It certainly does not mean that if I disagree with how a high-profile, articulate proponent of the current contingency fee system deals with contingency fees on his firm website, I won't point to what he says and voice my disapproval. I'm not airing a complaint against you any more than you are doing so when you target Walter Olsen.
Evan, I'm sorry if this got out of hand. I don't hold grudges and I wasn't trying to pick on you in particular with my first mention of your website -- my beef is with the general practice of using standard contingency fees, and I happened to accidentally run across the example of your website.
This wasn't the best way to make your acquaintance, but I hope we'll continue to communicate as weblog colleagues, and as two lawyers who both appear to care about legal ethics.
Posted by: David Giacalone | January 24, 2004 at 08:26 PM