Contingent Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients

Abstract

The term "contingency fee" brings to mind an image of an individual lawyer entering into an agreement with a single client to be paid a percentage of that client's recovery from an allegedly tortious injury. In addition, contingency fee contracts call for reimbursement of attorneys by clients of certain kinds of costs (such as filing fees imposed by courts or consulting fees charged by experts) advanced by lawyers on litigants' behalf. Much of the literature on contingent fees examines the justifications for this form of payment. Enthusiasts praise contingent fee contracts for their capacity to enable access to courts and the provision of legal services for clients otherwise not able to afford counsel. Proponents argue that when contingency fee attorneys reap substantial returns, such sums are appropriate rewards for the willingness to bear the risk of nonpayment and to absorb the expenses of litigation, pending payment. Commentators consider whether the return on risk is optimal or a "windfall," whether incentives created by contingency fees enhance or diminish attorney loyalty and the quality of the services provided, and whether contingency fee lawyers function well or problematically as "gatekeepers" to courts. Because the attorney-client relationship and the resulting obligation to pay are creatures of "private" contract, whatever worries are occasioned by contingency fees are channeled primarily into proposals to regulate attorneys through ethical rules.