Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and Issues of Control in the Lawyer-Client Relationship

One hallmark of Herb Jacob's analyses of criminal courts—extensive consideration of the interaction among actors–was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.     

Aligning the Interests of Lawyers and Clients

The potential conflict of interest between lawyers and clientsis well known. If a lawyer is paid for his time regardless ofthe outcome of the case, the lawyer may wish to bring the caseeven when it is not in the best interest of the client, mayspend more hours working on the case than the client would want,and may reject a settlement when the client would be betteroff if it were accepted. Alternatively, if the lawyer is compensatedaccording to the conventional contingent fee arrangement—underwhich he is paid a fraction of any trial award or settlementbut bears all of the cost of litigation—the lawyer mayhave an insufficient incentive to bring the case, may spendtoo little time working on it if it is brought, and may encouragea settlement when the client would be better off going to trial.In this article we propose a method of compensating lawyersthat overcomes the conflict of interest between the lawyer andthe client. Our system is a variation of the conventional contingentfee system, but, in contrast to that system, we would have thelawyer bear only a fraction of the cost of litigation—thesame fraction that the lawyer obtains of the award or settlement.We demonstrate that when the fraction of the cost that the lawyerbears equals the fraction of the award or settlement that heobtains, he will have an incentive to do exactly what a knowledgeableclient would want him to do with respect to accepting the case,spending time on the case, and settling the case. Under ourmodified contingent fee system, a third party would compensatethe lawyer for a certain fraction of his costs, in return forwhich the lawyer would pay that party an up-front fee. In thisway, the client would not bear any costs, even if the case werelost, just as under the conventional contingent fee system.     

Comment on "Aligning the Interests of Lawyers and Clients"

Polinsky and Rubinfeld (2003) propose a novel system for eliminatingthe conflict of interest between lawyers and clients over howhard the lawyer should work on a given case. In their analysisof the system, however, Polinsky and Rubinfeld implicitly assumethat the lawyer's marginal cost of effort is common knowledge.This comment shows that, when this assumption is relaxed, thoughtheir scheme does reduce the agency problem relative to thestandard contingency fee arrangement, it no longer eliminatesit.     

"It's Darwinism – Survival of the Fittest:" How Markets and Reputations Shape the Ways in Which Plaintiffs' Lawyers Obtain Clients

The survival of a plaintiffs' lawyer's practice depends upon the generation of an ongoing flow of clients with injuries that the civil justice system will compensate adequately. If this requirement is not met, lawyers will leave this aspect of the legal market for more promising ones. If they do, legal services for injured people will be diminished as a result. In order to find out how this personal services legal market is defined and developed, we interviewed ninety‐five plaintiffs' lawyers in Texas. These lawyers use four major strategies to get clients: client referrals, lawyer referrals, direct marketing, and other referrals. What any particular lawyer does is shaped by the geographic market from which clients are drawn, and by the lawyer's reputation. Our findings provide fresh insights for the empirical literature on plaintiffs' lawyers, and they provide an empirical context for assessing the potential impact of changes in the civil justice system, like tort reform, on the ability of plaintiffs' lawyers to obtain clients.     

Public Lawyers and Private Clients: An Empirical Observation on the Relative Success Rates of Cause Lawyers

Cause lawyering is often criticized for creating an untenable tension between the professional obligations of the lawyer to the individual client and the lawyer's ideological commitment to public causes. I sought to test empirically the validity of this argument by comparing the relative success rates of political lawyers and non‐political lawyers in defending their clients' interests in litigation concerning house‐demolition orders before the Israeli High Court of Justice. I found that the general success rates of political lawyers in the research population were significantly higher than those of non‐political lawyers. These findings can serve as an additional support for the various arguments in favor of cause lawyering.     

Family Values: How Children's Lawyers Can Help Their Clients by Advocating for Parents

Children's lawyers too often view themselves as standing in opposition to parents in dependency proceedings. In this article, the authors argue that child advocates do a disservice to their clients by not using their considerable skills, role advantages, and moral authority to actively help parents. Noting that areas of common ground far exceed those places where the children's bar and the parents' bar might part company, the authors contend that children's lawyers have an obligation to actively fight for parents' rights. In particular, spending time early in a case to ensure that appropriate reunification services are being offered is well worth the investment, as it redounds to the benefit of all parties. Several concrete practice tips are offered regarding how children's lawyers can better serve their clients by regularly advocating for parents.     

Settlement Disputes: Evidence from a Legal Practice Perspective

This paper explores the agency relationship between a lawyer and a client in the context of deciding whether to settle a case. The impact of alternative fee arrangements on settlement disputes is empirically assessed in a discrete dependent variable econometric model utilizing survey data from lawyers in British Columbia. In contrast to the previous research based on traditional single-task principal-agent models, a broader multitask perspective of a lawyer's practice is explored. More frequent settlement disputes are observed where the handling of disbursements is one-sided, and among lawyers who advertise, use lump sum billing and pursue jury trials and punitive damages. Disputes are less frequent among lawyers who employ percentage contingency fees and hourly rate contracts with a bonus for successful results. Disputes are also less frequent among lawyers in larger firms. There is also evidence that legal fee regulation and ex post judicial review of legal fees in British Columbia have affected the frequency of settlement disputes.     

Client Influence and the Contingency of Professionalism: The Work of Elite Corporate Lawyers in China

This study examines how the professional work of elite corporate lawyers is constructed by influence from different types of clients. The data presented include interviews with 24 lawyers from six elite corporate law firms in China and the author's participant-observation in one of the firms. For these elite Chinese corporate law firms, foreign corporations, state-owned enterprises, and private enterprises constitute their extremely diversified client types. Accordingly, lawyers' work becomes flexible and adaptive to accommodate the different demands of the clients. Meanwhile, client influence on lawyers' professional work is mediated by the division of labor within the corporate law firm: whereas partners have solid control over the process of diagnosis, inference, and treatment and thus enjoy a high degree of professional autonomy, associates are largely stripped of this cultural machinery in the workplace, and their work becomes vulnerable to client influence. As a result, client influence on professional work appears to decrease with a lawyer's seniority.     

Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients

In this study, relations between criminal defense lawyers and their clients are explored from the attorneys'perspective using interviews with 155 defense counsel from nine felony trial courts. Attorneys claim public clients are more skeptical and less willing to accept their professional authority than private clients and that they need to take extra steps to gain their cooperation. The accountability of attorneys is investigated in relationship to the need to establish "client control. " This problem is resolved through a gamelike situation leading to the apparent paradox that attorneys share decision-making power with public clients contrary to their expectations.     

The Ethics of Corporate Lawyers: A Sociological Approach

The American Bar Association is considering a revision of its Code of Professional Responsibility. One revision deals specifically with lawyers whose clients are organizations; it attempts to delineate the ethical responsibilities of such lawyers when they discover an employee or a member of one of their clients is engaged in wrongdoing on the organization's behalf. Because the proposal suggests that corporate counsel may be justified in public disclosure of the wrongdoing when the organization itself fails to rectify the problem, it has sparked much controversy in the profession and much speculation as to whether and when corporate counsel will "blow the whistle." The article offers a sociological perspective on the act of a corporate counsel's public disclosure of organizational wrongdoing. The act of disclosure is treated as a social behavior, the likelihood of which is increased or decreased by a number of factors including the attorney's awareness of the wrongdoing, the attorney's orientations to the larger profession, the structure of the professional practice setting within which the counsel is located, and the supports for disclosure offered by the legal profession through its formal organizations. These factors are described and then combined into a general predictive model of disclosure by corporate counsel. A concluding discussion of the general ramifications of the proposed revisions focuses on the social implications of the attorney-client privilege, in which the client is as unique an actor as is the large organization.     

Lawyers for Conservative Causes: Clients, Ideology, and Social Distance

Scholars have devoted attention to "cause lawyers" on the political left, but lawyers who work on the conservative side of the American political spectrum have received relatively little academic consideration. This article presents systematic data on the characteristics of and relationships among lawyers affiliated with organizations active on a selected set of 17 conservative issues. We find that the lawyers serve several separate and distinct constituencies—business conservatives, Christian conservatives, libertarians, abortion opponents—and that the credentials of the lawyers serving these varying constituencies differ significantly. The greatest degree of social separation occurs between the business constituency and the abortion opponents, with another clear separation between libertarians and the interest groups devoted to traditional family values and order maintenance. The divisions among these constituencies appear to reflect the difference between "insider politics" and "populism," which is manifested in part in actual geographic separation between lawyers located in the District of Columbia and those in the South, West, and Midwest. In the center of the network, however, we find some potential "mediators"—prominent lawyers who may facilitate communication and coordination among the several constituencies. These lawyers and the organizations they serve attempt to merge morality, market freedom, and individual liberty concerns, and they convene meetings of diverse sets of lawyers and organizational leaders to seek consensus on policy goals. Nonetheless, the findings indicate that most organizations are seldom active on issues that lie beyond the relatively narrow boundaries of their own interests.     

The Stalking of Lawyers: A Survey Amongst Professionals in Milan

This is the first study focused on the stalking of lawyers. The authors hypothesized that these professionals are at risk of being stalked by their clients and that this stalking is ascribable to RECON type I.B. A random sample of lawyers was survived. 37.3% of 166 respondents revealed to have been stalked: not only by clients, but also by adversaries and colleagues. Data seem to confirm that the stalking of lawyers mainly belongs to RECON type I.B. Female lawyers were at greater risk than male lawyers. In family law cases, the professionals tended to be stalked by the former husbands of the lawyers' clients (p < 0.01). Several female lawyers—but no male lawyers—were threatened with harm to their family members (p < 0.05). Most of the stalking victims described psychological effects of being stalked. Who suffered physical aggression or repercussions on work was more likely to lodge a complaint (p < 0.01).     

Cause Lawyers,Political Violence,and Professionalism in Conflict

This article examines how cause lawyers in conflicted and authoritarian societies balance their professional responsibilities as lawyers with their commitment to a political cause. It is drawn from extensive interviews with both lawyers and political activists in a range of societies. It focuses on the challenges for lawyers in managing relations with violent politically‐motivated clients and their movements. Using the notion of ‘legitimation work', it seeks to examine the complex, fluid, and contingent understandings of legal professionalism that is developed in such contexts, offering three overlapping ‘ideal types’ of cause lawyers in order to better understand the meaning of legal professionalism in such sites: (a) struggle lawyers (b) human rights activists and (c) a ‘pragmatic moral community'. The article concludes by re‐examining how law is imagined in the legitimation work of cause lawyers in such settings and how that work is remembered in the transition from violence.     

关于律师政治素质和社会责任问题的思考

律师是为当事人提供法律服务的执业人员,具备坚实的法律素养是其基本要求,而要成为一名真正合格乃至优秀的律师,就必须同时具备良好的政治素质和政治敏锐性,要勇于承担维护公平正义的社会责任。我国律师业所面临的困境与法治处于发展状态有关,律师的困境就是法治的困境,而解决或缓解律师和律师业困境的首要问题是如何处理好律师政治素质与社会责任的问题。     

Hiring Teams,Firms, and Lawyers: Evidence of the Evolving Relationships in the Corporate Legal Market

How are relationships between corporate clients and law firms evolving? Drawing on interview and survey data from 166 chief legal officers of S&P 500 companies from 2006–2007, we find that—contrary to standard depictions of corporate client‐provider relationships—(1) large companies have relationships with ten to twenty preferred providers; (2) these relationships continue to be enduring; and (3) clients focus not only on law firm platforms and lead partners, but also on teams and departments within preferred providers, allocating work to these subunits at rival firms over time and following “star” lawyers, especially if they move as part of a team. The combination of long‐term relationships and subunit rivalry provides law firms with steady work flows and allows companies to keep cost pressure on firms while preserving relationship‐specific capital, quality assurance, and soft forms of legal capacity insurance. Our findings have implications for law firms, corporate departments, and law schools.     

“He did everything he possibly could for me”: medical malpractice claimants’ experiences of lawyer–client relations

Lawyers are obliged to act in the interests of their clients, however, it is not clear how lawyers should do this in practice. Should lawyers follow their clients' instructions without deviation, should they actively manage their clients' expectations, or as many studies suggest, do lawyers place their own interests first? This paper examines how lawyers interact with medical malpractice claimants. It reveals that lawyers take a client-aligned approach, where lawyers acknowledge their client's goals, but do not necessarily do what the client says. We argue that this approach is made necessary by legal and organisational constraints which limit the ability of lawyers to produce the types of outcomes that their clients want.     

In the Interests of Clients or Commerce? Legal Aid,Supply, Demand,and ‘Ethical Indeterminacy’ in Criminal Defence Work

As a professional, a lawyer's first duty is to serve the client's best interests, before simple monetary gain. In criminal defence work, this duty has been questioned in the debate about the causes of growth in legal aid spending: is it driven by lawyers (suppliers) inducing unnecessary demand for their services or are they merely responding to increased demand? Research reported here found clear evidence of a change in the handling of cases in response to new payment structures, though in ways unexpected by the policy's proponents. The paper develops the concept of ‘ethical indeterminacy’ as a way of understanding how defence lawyers seek to reconcile the interests of commerce and clients. Ethical indeterminacy suggests that where different courses of action could each be said to benefit the client, the lawyer will tend to advise the client to decide in the lawyer's own interests. Ethical indeterminacy is mediated by a range of competing conceptions of ‘quality’ and ‘need’. The paper goes on to question the very distinction between ‘supply’ and ‘demand’ in the provision of legal services.     

The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work

This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.     

Weak Enforcement,Strong Deterrence: Dialogues with Chinese Lawyers About Tax Evasion and Compliance

This article analyzes why Chinese lawyers report a high level of perceived deterrence in relation to tax evasion even though enforcement is weak. It finds that deterrence here originates from multiple sources, most directly through clients and more distantly through the firm and the state. Lawyers have highly contextual notions of detection probability and a vague understanding of sanction severity unfitting of the high deterrence found here. In the cases studied, deterrence arises out of a general fear lawyers have of state authorities and clients, as well as through personal morals and social norms in their firms. This shows a broader and deeper approach to deterrence, beyond certainty and severity of punishment for the violation studied, one in which the general perceived risk of such violation is central, whatever its source.     

浅析我国律师参与非诉讼纠纷解决机制的困境

我国律师参与非诉讼纠纷解决机制尚处于探索阶段,目前存在着律师与当事人对ADR的控制权争夺、职业行为规范不健全、利用率不高等诸多难题。需要引入合作式参与的模式对律师与委托人的关系进行调整,确立科学的职业行为规范以维护ADR的程序正义,建立相关机制以进一步发挥律师在化解社会矛盾中的作用。