Conditional Fees: The Challenge to Ethics

Authors: Yarrow, Stella; Abrams, Pamela

Source: Legal Ethics, Volume 2, Number 2, 1999 , pp. 192-213(22)

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Abstract:

It has been claimed that arrangements where lawyers are paid by results pose a particular threat to their professional obligation to put the client's interest before their own. The introduction of conditional fees (CFAs), a variant of contingency fees, in England and

Wales was accompanied with controversy about whether they would lead to a deterioriation in ethical behaviour. This discussion has tended to draw conclusions from evidence about the impact of contingency fees on the behaviour of lawyers in the USA. Alternatively, it has been based on a theoretical analysis of the ethical difficulties that CFAs may cause.2 There has been very limited empirical evidence about the operation of conditional fees in England and Wales on which to base a discussion of their impact on the profession's attitudes and behaviour. This gap will now at least in part be filled by results from two empirical studies of CFAs. This paper draws together the findings of this research which have implications for professional ethics. For these studies, we carried out qualitative interviews with 36 personal injury solicitors and 40 clients with personal injury cases.3 The paper deals with solicitors only; the authors are carrying out separate research into CFAs and the Bar. After considering the ethical issues raised by contingency fees and CFAs, the paper discusses the evidence on the following questions.

What are the attitudes and behaviour of solicitors in the face of the ethical issues associated with CFAs?</list-item> <list-item>

Have fears that solicitors would exploit clients been borne out?</list-item> <list-item>

Have mechanisms to regulate solicitors'use of CFAs been effective in preventing abuse?</list-item></list>

The article focuses in particular on two ethical issues: whether CFAs have resulted in excessive fees and whether financial interests influence solicitors'conduct of litigation. We also address the respective level of knowledge of client and solicitor. It is this that makes the former potentially vulnerable to exploitation by the latter.

Keywords: conditional fees (CFAs); contingency fees; solicitors; speculative fees; success fee; the client's interests; legal ethics; the Conditional Fee Agreements Regulations; Financial interests; process of litigation

Document Type: Research article

Publication date: 1999-01-01

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Legal Ethics is an international and interdisciplinary journal devoted to the field of legal ethics.
The journal provides an intellectual meeting ground for academic lawyers, practitioners and policy-makers to debate developments shaping the ethics of law and its practice at the micro and macro levels.
Its focus is broad enough to encompass empirical research on the ethics and conduct of the legal professions and judiciary, studies of legal ethics education and moral development, ethics development in contemporary professional practice, the ethical responsibilities of law schools, professional bodies and government, and jurisprudential or wider philosophical reflections on law as an ethical system and on the moral obligations of individual lawyers.
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Conditional Fees: The Challenge to Ethics

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