f/k/a . . .

                                                                                                - an April 1st dream by Prof. Yabut -

 

In a press release made available late this evening (April 1, 2005), the American Tort

Lawyers Association announced the adoption of new ethical standards that should

mean the end of the Standard Contingency Fee among its members.    The press

release explained:

Jack Cliente, ATLA’s consumer rights ombudsman, said “We’re tired of

being known as the “At-Least-a-Third Law Association.”  A small but

committed group of members were able to convince their colleagues that their

ethical duties were inconsistent with the automatic application of a “standard”

percentage fee.

  Cliente explained that the percentage fee charged should reflect how likely the client is 

to win, how much money is likely to be rewarded and collected, and how much work and expense

the lawyer is likely to put into the case.  At the press conference, Cliente frequently quoted

trial lawyer and former Florida Bar president  Rutledge R. Liles. For example:

“While it is easy to defend the philosophy of the contingent fee, it is impossible

to defend its abuses.  . . . It has been accurately said, in justification of the contingent

fee, that it is the ‘poor man’s key to the courthouse.’ Professionalism, however,

demands that we be ever mindful that keys are made of brass — not solid gold.”

As of today, April 1, 2005, all ATLA members must give to each client, and thoroughly

explain and implement, an Injured Consumers’ Bill of Rights for Contingency Fees, which

lawyer and client must sign.  At the core of the Bill of Rights is the requirement that a

lawyer take a list of enumerated factors into account in evaluating each client’s case, and

discuss each factor with the prospective client, before they negotiate and agree upon

the percentage fee to be charged in a contingency fee agreement.  Cliente noted that this

position (although now mostly “honored in the breach”) is the profession’s traditional

approach to the use of contingency fees.  

• 
  
  
  

  Your editor believes the new ATLA requirements are a great start

  
  

  toward fulfilling the admonition in ABA Ethics Opinion 94-389 that

  
  

  “any lapse from the applicable requirements by some members of the

  
  

  profession simply suggests that the profession should redouble its

  
  

  efforts to assure that the ethical obligations associated with entering

  
  

  into a contingent fee arrangement are fully understood and observed.”

The Bill of Rights appears to draw heavily on the requirements set forth in ABA Formal  

Ethics Opinion 94-389, while also using concepts found in Rule 4-1.5 of Florida’s Bar Code

and in the Bill of Rights that appeared in HALT’s The Legal Reformer (Dec. 1997).  [Ethics

Opinion 94-389 is not available online without a subscription, but is discussed here.]  Cliente

stressed that ATLA is not affiliated with another bar group using the same acronym, which

has yet to condemn standard contingency fees, although it has publically asserted — when

faced with reform proposals — that such fees should vary depending on the riskiness and

complexity of the individual case.

 

Editor emeritus of this weblog, ethicalEsq, was certain the Press Release must be an

April Fool’s joke, but ombudsman Cliente has assured us that the entire leadership of

his organization is now strongly behind the reform measure.   skepticalEsq concluded

ATLA had discovered plans to clone Judge Preska and put her in charge of regulating

contingency fees.  [for more, see ethicalEsq posts such as here and here]

 

 

into the snake’s hole

oh foolish

mouse

 

 

Kobayashi Issa 

translated by David G. Lanoue        

 

diner dusk

her twenty-something hips

winding minds counter clockwise

 

 

 

 

 

                                                                                 a   y

                                                                              w

                                                                            a

                                                                          s

                                                                       w

                                                                    o

                                                                  l

                                                                b

birthday balloons the one that doesn’t burst

 

 

 

 

 

pea soup fog

the sound of a map

unfolding beside me

 

 

 

 

Ed

     Markwoski,

     “pea soup fog” * “diner dusk” from

              Haiku Sun  (Issue X, Jan. 2004) 

 

 

and, an encore:

    shifting
as
       he shouts
          the
faith healer’s
                    toupee

 

 

from dagosan                                               

 

April 1 –

no one here

to make a fool of me

 

 

             

 

 

first scull of the year

arms ache

just waving

 

 

 

 

 

last day of March

her pink slip’s

no prank

 

 

[April 1, 2005]

 

 

The usual savvy suspects are taking part in Adam Smith Esq’s

“The Future of the Billable Hour.”  As usual, almost everyone

blames the method of billing rather than the motives of the biller.

It is an awful lot like blaming the automobile for injury done from

collisions, rather than blaming the reckless ness or negligence (or

intent) of the driver (or the driver’s employer).

 

As I’ve discussd in my piece on chronomentrophobia 

(where you can find citations and links), and have probably mentioned

elsewhere:

[1] From the client’s perspective, there is nothing wrong  

with the billable hour fee system that cannot be cured by

the lawyer merely doing what is required of him or her ethically

and as a fiduciary: (a) following the standards embodied in

Rule 1.5(a) of the Model Code — e.g., basing the fee on the

experience and capabilities of the lawyer, complexity of the matter,

etc.; (b) performing in an efficient and competent manner; and

(c) keeping the client well-informed.

 

 [2] From the perspective of the overworked associate or partner,

there is nothing wrong with the billable hour fee system that is not

very likely to be carried over to any alternative billing arrangements,

if the firm expects the shift to be made without reducing its income

or profits. 

 

[3] Clients expect “alternative fee arrangements” and “value billing”

to result in lower overall fees, not higher ones.

 

diner dusk

her twenty-something hips

winding minds counter clockwise

 

 

 

 

 

                                                                                 a   y

                                                                              w

                                                                            a

                                                                          s

                                                                       w

                                                                    o

                                                                  l

                                                                b

birthday balloons the one that doesn’t burst

 

 

 

 

 

pea soup fog

the sound of a map

unfolding beside me

 

 

 

 

Ed

     Markwoski,

     “pea soup fog” * “diner dusk” from

              Haiku Sun  (Issue X, Jan. 2004) 

 

 

and, an encore:

    shifting
as
       he shouts
          the
faith healer’s
                    toupee

 

 

from dagosan                                               

 

April 1 –

no one here

to make a fool of me

 

 

             

 

 

first scull of the year

arms ache

just waving

 

 

 

 

 

last day of March

her pink slip’s

no prank

 

 

[April 1, 2005]

 

 

The usual savvy suspects are taking part in Adam Smith Esq’s

“The Future of the Billable Hour.”  As usual, almost everyone

blames the method of billing rather than the motives of the biller.

It is an awful lot like blaming the automobile for injury done from

collisions, rather than blaming the reckless ness or negligence (or

intent) of the driver (or the driver’s employer).

 

As I’ve discussd in my piece on chronomentrophobia 

(where you can find citations and links), and have probably mentioned

elsewhere:

[1] From the client’s perspective, there is nothing wrong  

with the billable hour fee system that cannot be cured by

the lawyer merely doing what is required of him or her ethically

and as a fiduciary: (a) following the standards embodied in

Rule 1.5(a) of the Model Code — e.g., basing the fee on the

experience and capabilities of the lawyer, complexity of the matter,

etc.; (b) performing in an efficient and competent manner; and

(c) keeping the client well-informed.

 

 [2] From the perspective of the overworked associate or partner,

there is nothing wrong with the billable hour fee system that is not

very likely to be carried over to any alternative billing arrangements,

if the firm expects the shift to be made without reducing its income

or profits. 

 

[3] Clients expect “alternative fee arrangements” and “value billing”

to result in lower overall fees, not higher ones.

No matter your take on evolutionary biology (or on the role of government in 

the marketplace), if you’re looking for signs of intelligent life on April Fool’s Day,

you should click on over to the special report by the American Antitrust Insitute’s

Science Correspondent, “Antitrust Controlled by Jerks” (AAI, April 1, 2005). 

 

You’ll discover whether antitrust history demonstrates an “evolution by creeps, or

evolution by jerks.”  And, among other artifacts, you’ll find Larry Summers

speculation on “why there are so few women heading up the antitrust departments

of major law firms.”

 

 AAI President Bert Foer isn’t revealing the identity of the Science

Correspondent, or his sources.  Feel free to speculate.

• 
  
  For a serious look at the satirized issues, see William B. Kovacic’s essay,  
  
  
  The Modern Evolution of U.S. Competition Policy Enforcement Norms.
  
  
• 
  
  
  

  For a look at the search for intelligent extraplanetary life, see this illustrated

  
  

  lecture by University of Arizona professor Michael R. Meyer.

 

 

on the beach

the tracks of two

lounge chairs

                      John Stevenson

                               from Quiet Enough

 

  Stop by George M. Wallace’s neck of the woods today — there 

should be an April 1st celebration at A Fool in the Forest.

 

  You know Steve Bainbridge must be quite rattled, if he forgets

to rattle his Tin Cup after an auto break-in.   You might want to pay a visit and

help Prof. B. pay his deductible.

 

 

No matter your take on evolutionary biology (or on the role of government in 

the marketplace), if you’re looking for signs of intelligent life on April Fool’s Day,

you should click on over to the special report by the American Antitrust Insitute’s

Science Correspondent, “Antitrust Controlled by Jerks” (AAI, April 1, 2005). 

 

You’ll discover whether antitrust history demonstrates an “evolution by creeps, or

evolution by jerks.”  And, among other artifacts, you’ll find Larry Summers

speculation on “why there are so few women heading up the antitrust departments

of major law firms.”

 

 AAI President Bert Foer isn’t revealing the identity of the Science

Correspondent, or his sources.  Feel free to speculate.

• 
  
  For a serious look at the satirized issues, see William B. Kovacic’s essay,  
  
  
  The Modern Evolution of U.S. Competition Policy Enforcement Norms.
  
  
• 
  
  
  

  For a look at the search for intelligent extraplanetary life, see this illustrated

  
  

  lecture by University of Arizona professor Michael R. Meyer.

 

 

on the beach

the tracks of two

lounge chairs

                      John Stevenson

                               from Quiet Enough

 

  Stop by George M. Wallace’s neck of the woods today — there 

should be an April 1st celebration at A Fool in the Forest.

 

  You know Steve Bainbridge must be quite rattled, if he forgets

to rattle his Tin Cup after an auto break-in.   You might want to pay a visit and

help Prof. B. pay his deductible.