The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000'S Revision of Model Rule 1.5
37 Pages Posted: 11 Nov 2019
In recent decades, fiduciary rights of clients carefully constructed over the course of a millennium have been eroded. Lawyers' self-interest is increasingly overpowering lawyers' self-restraint. Among the protective structures that are being undermined are the rights of clients to hold lawyers accountable in aggregative actions, the substantial elimination of fiduciary protections for contingency fee clients, and the increasing irrelevance of the "reasonable fee" requirement.
In particular, the obligations to charge a tort claimant fair and reasonable fees and to fully inform that client of fee options and how they comport with the client's interest - the very core of the traditional fiduciary obligation and its ban on overreaching - has been eroded by decades of attorney practices in the marketplace which have effectively received the imprimatur of the judiciary and are further insulated from oversight by lax or non-existent disciplinary oversight of contingency fees.
Recently, the American Bar Association's Ethics 2000 Commission was created to examine the Model Rules of Professional Conduct and propose changes. Upon review of Rule 1.5 (dealing with fees), the Commission could have sought to counter the erosion of fiduciary rights by resoundingly reaffirming basic and traditional fiduciary protections for contingency fee clients - to be sure, a courageous act in a era of unparallel power exercised by such attorneys. Absent such courage, it could have chosen to remain silent, an act of capitulation to current practices. Instead, it chose a third path. It elected to elevate attorney profits over the obligation to treat clients fairly by, inter alia, proposing to eliminate a clause in the Comment to Rule 1.5 articulating a client's right to be given a choice of whether to pay an hourly rate or the standard 33½-40 per cent contingency fee charged by personal injury lawyers and to have the lawyer's non-self interested advice as to which is in the client's best interest. While contingency fee lawyers routinely ignore this obligation, instead of reaffirming this traditional duty owed the client as the ABA Standing Committee on Ethics and Professional Responsibility recently did, the Ethics 2000 Commission proposed to expunge virtually all of the meaningful fiduciary and ethical obligations relating to contingency fees from the ABA's Model Rules, for the convenience and profit of lawyers. Had the American Trial Lawyers Association been delegated the responsibility to propose changes to Model Rule 1.5, it's recommendations would likely have approximated the Ethics 2000 proposals.
This article critiques the Ethics 2000 proposals regarding Model Rule 1.5 which were adopted by the ABA. It begins with a brief examination of the origin and concept of fiduciary obligation, the nature of the fiduciary obligation imposed on the lawyer and, in particular, those obligations that superintend the financial relationship with the client. It then focuses on how fiduciary protections for clients have been and are being eroded as lawyers increasingly succeed in exempting themselves from the very rules that they have been instrumental in creating to regulate and make actionable the conduct of others. Having thus set the stage, the article then critically analyzes the Ethics 2000 proposals to amend Rule 1.5, including repealing the long standing protection for contingent fee clients - the right to make an informed choice among alternative fee structures.
Keywords: Legal ethics, fees, contingency fees
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