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January 2003 Archives

Supporters characterize our current contingent fee system as a free-market way of financing tort litigation. Yet Prof. Brickman concludes that contingent fee rates in practice are set at standard levels and are collusively maintained rather than resulting from market rivalry. The bar itself contributes to the problem through ethical rules that preclude price competition. Are antitrust enforcers paying attention?
Defenders of our current litigation finance system sometimes claim that once one adjusts for the risk of nonpayment, contingency fee attorneys earn fees comparable to those of their defense counterparts. In this empirical investigation, Prof. Brickman concludes to the contrary that the effective rates of the top quartile of contingency fee lawyers amount to several thousand dollars an hour. He also concludes that effective hourly rates have increased an inflation-adjusted 1400% over the past 40 years.
Left to their own devices in regulating legal practice, will bar associations protect the interests of clients, or conspire against them? The American Bar Association approved a recommendation of its Ethics 2000 Commission to delete one of the few remaining provisions in its Model Rules of Professional Conduct providing fiduciary protection for tort-plaintiff clients. Prof. Brickman lodges a strong protest in this article, which includes a survey of other ways in which the organized bar has undermined clients' fiduciary protections.
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