The Greatest American Lawyer has been on the greatest of blog-posting frenzies this past week, with a number of must-read posts. But the one I’ve selected to focus on is this, which asks Have you ever considered waiving fees even when you did nothing wrong? There, GAL describes his decision to forego several thousand dollars in fees when his client suffered summary disposition as a result of a court’s completely unanticipated reversal of longstanding precedent, which it then applied retroactively to pending suits. As GAL points out, he wasn’t to blame for the state’s highest court overruling precedent nor did his retainer absolve the client from paying if he received an adverse result. But GAL felt:
it was the right thing to do given our constant push to share a level of risk with the client. Many firms would be shocked by an approach which penalized the firm for essentially doing nothing wrong. I think that it is critical that attorneys always have some skin in the game, as they would if the matter was being handled purely on a contingency fee. The goal is not simply to collect as much money from the client as possible. The goal is to deliver results. When those results are not achieved, even when the lawyer has done their very best, there ought to be some sharing of the risk.
Under most professional codes of conduct, GAL would have acted perfectly ethically had he charged full fare. But there’s more to good client relations than just professional ethics – and I think sometimes that we lawyers cling so tightly to our ethics code so that we can avoid thinking about what’s fair or what’s decent. If we want to improve the image of our profession, it’s not enough that we do what’s professionally ethical; that’s just a starting point. Beyond that, we still need to make sure that what we’re doing is right by our clients. Seems to me that GAL is doing just that.