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GAL Does the Decent Thing

by Carolyn Elefant on November 30, 2005 · 6 comments

in Client Service, Ethics Issues, Setting and Collecting Fees

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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.

Are you?

  • http://declarationsandexclusions.typepad.com/weblog/ George Wallace

    Good for GAL, I say.
    It seems to me that as a profession we are sometimes unduly attached to our own pay days. Yes, we’re all trying to make a decent living for ourselves and our families, but the moral duty to do right by our clients — and just to do the decent thing — sometimes ought to require us to put our own, objectively legitimate, economic interests to one side.
    Over the years, there have been several occasions when a client of mine has been reluctant to accept an otherwise reasonable settlement proposal from his/her opposite number because of the portion of the proceeds that will need to go to paying legal fees; I have been willing on those occasions to write off or walk away from fees I have perfectly well earned in order to remove the last obstacle to a settlement I know is best for the client.
    I think of the result as a sort of post hoc pro bono.
    Here’s a rhetorical bonus question: Am I wrong in my perception that solo and small firm practitioners are generally much more willing to cut, compromise or forego fees for their clients’ benefit than are large-firm lawyers, even though the latter are generally in a better position to afford it? Just asking.

  • http://declarationsandexclusions.typepad.com/weblog/ George Wallace

    Good for GAL, I say.
    It seems to me that as a profession we are sometimes unduly attached to our own pay days. Yes, we’re all trying to make a decent living for ourselves and our families, but the moral duty to do right by our clients — and just to do the decent thing — sometimes ought to require us to put our own, objectively legitimate, economic interests to one side.
    Over the years, there have been several occasions when a client of mine has been reluctant to accept an otherwise reasonable settlement proposal from his/her opposite number because of the portion of the proceeds that will need to go to paying legal fees; I have been willing on those occasions to write off or walk away from fees I have perfectly well earned in order to remove the last obstacle to a settlement I know is best for the client.
    I think of the result as a sort of post hoc pro bono.
    Here’s a rhetorical bonus question: Am I wrong in my perception that solo and small firm practitioners are generally much more willing to cut, compromise or forego fees for their clients’ benefit than are large-firm lawyers, even though the latter are generally in a better position to afford it? Just asking.

  • http://tcattorney.typepad.com Enrico Schaefer

    George: There is no doubt about it. Firms with fewer partners have much more autonomy to simply do what is fair at the end of the billing day. There is a sense at a firm with several partners (or worse hundreds of partners) that you are giving away “their money” when you don’t get paid, or waive a fee. At a practice with fewer partners, you don’t have the pressure to collect every red cent from ever client for every minute.

  • http://tcattorney.typepad.com Enrico Schaefer

    George: There is no doubt about it. Firms with fewer partners have much more autonomy to simply do what is fair at the end of the billing day. There is a sense at a firm with several partners (or worse hundreds of partners) that you are giving away “their money” when you don’t get paid, or waive a fee. At a practice with fewer partners, you don’t have the pressure to collect every red cent from ever client for every minute.

  • http://legalblogwatch.typepad.com/legal_blog_watch/2005/12/why_waive_fees_.html Inside Opinions: Legal Blogs

    Have you ever waived fees even if you’ve done nothing wrong?

    Here’s why you might want to consider it, according to Carolyn Elefant. She recommends The Greatest American Lawyer’s post, Have you ever considered waiving fees even when you did nothing wrong? Elefant digs into his details and then offers her

  • http://legalblogwatch.typepad.com/legal_blog_watch/2005/12/why_waive_fees_.html Inside Opinions: Legal Blogs

    Have you ever waived fees even if you’ve done nothing wrong?

    Here’s why you might want to consider it, according to Carolyn Elefant. She recommends The Greatest American Lawyer’s post, Have you ever considered waiving fees even when you did nothing wrong? Elefant digs into his details and then offers her

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