The Continuing Assault on the Citadel of Fiduciary Protection

Ethics 2000’s Revision of Model Rule 1.5

The attorney-client relationship typifies a fiduciary relationship. At a minimum, attorneys are required to deal fairly and reasonably with their clients while avoiding any inclination to act in a self-interested manner. Nowhere is the tension between a lawyer’s self-interest and their fiduci-ary obligations to a client greater than in the area of fee structures.Contingency fees were developed to allow clients representation when they otherwise may not be able to afford such representation, while com-pensating a lawyer in a manner commensurate with the degree of risk presented by the case. Despite the inherent self-interest encountered by lawyers when presented by potentially large contingency fees, lawyers are in the unique position to gauge the risk presented by a particular case and counsel their clients accordingly. Questions have arisen whether some in the contemporary contingency fee bar have struck the balance too far in favor of their own self-interest, rather than in their client’s best interest, when failing to present alternative fee structures. These ques-tions have poignantly come to light after the extraordinarily large fees demanded following the recent tobacco litigation. Are lawyers honoring their fiduciary obligations to their clients?Professor Brickman urges that the balance has been struck clearly in fa-vor of lawyers’ self-interest. Beginning with a detailed examination of both the origins of fiduciary obligations and previous efforts at establish-ing a lawyer’s duties in presenting alternative fee structures, Brickman lays the foundation of the modern contingency fee structure and a law-yer’s corresponding fiduciary obligations. Brickman then turns to the role of the Ethics 2000 Commission in clarifying a lawyer’s obligations, examining the Commission’s changes to the Comment to Model Rule 1.5 addressing contingency fees. He finds that, rather than stem the tide of what he identifies as widespread contingency fee abuse and disregard for fiduciary obligations, the Ethics 2000 Commission not only removed well-established protections for clients, but facilitated abuse in the con-tingency fee system. Despite early efforts indicating that the Commission would place a renewed emphasis on the reasonableness of contingency fees, Brickman finds the Commission ultimately found that increased scrutiny of contingency fees posed too great a threat to the status quo. He concludes that the changes fly in the face of an attorney’s historical fiduciary obligation and materially diminishes the protections afforded to contingency fee clients.

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