The Contingent Fee―A Reasonable Alternative?

Publication Date01 May 1965
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01072.x
AuthorAlfred D. Youngwood
THE CONTINGENT FEE-A REASONABLE
ALTERNATIVE?
THE contingent fee is the normal and usual method of compensation
for the American lawyer representing a plaintiff
ip
a
personal injury
action as well as in numerous other civil causes.
In
England it is
normal and usual for the compensation arrangements to be made
under the Legal Aid Scheme.
The American justification
for
the contingent fee% that
it
enables
a poor person with a meritorious cause of action to obtain competent
legal services.’ And it is the view
of
at least one American commen-
tator that the rejection of the contingent fee in this country has
propelled
the Bar
into becoming
a
handmaiden of the Welfare
State.” This commentator continues:
‘‘
Under legal aid large segments of the population indigent only
in the sense that fhanaing
a
law
suit would be burdensome are
entitled to have their lawyers paid by the government.
.
. .
English rejection of the contingent fee today relates to extrinsic
considerations deeply involved in their concept of the Bar as an
arm of the Welfare State.”
Whether a comprehensive legal aid system better handles the
problems of financing litigation than a contingent fee system may
well depend upon some considerations extrinsic
to
the operation of
the contingent fee arrangements-matters ranging from the role of
government in the society to the scope of
court
costs awarded to the
successful party in litigation. This note
will
just set forth the
mechanics of the contingent fee
system
as it operates in America
today, and
will
indicate some
of
the major points
taken
by its
advocates and by its detractors..
The contingent fee is a method of compensation for, as
a
rule,
plaintiffs’ lawyers in which the client pays
no
fee for legal services
if there is
no
recovery.
If
there is
a
recovery through an out of
court
settlement
or
otherwise the lawyer receives a percentage of the
recovery, as previously agreed
upon
between the lawyer and his
client, as his fee. The client is liablhwin
or
10s-for his attorney’s
disbursements and
for
any
court
costs which may be assessed upon
him. In America court costs do not as a rule include the legal
fees of the winning party.
1
Gair
v.
Peck,
6
N.Y.
2d
97, 160
N.E.
ad
43
(1969).
2
5.-B.,Rughes,
Contingent Fee Contract in Massachusetts
(1963) 43
Boston
U.B.
I.
8
More extended treatment of the conte,gent fee in America
may
be found
in
the
following articles:
K.
B.
Hughes, Contingent Fee Contract
in
Massachu-
setts”
(1968) 43
Boston
5.R.
1;
“Contingent Fee Contracts: Validity,
Controls and Enforceability
(1962)
47
Iowa
L.R.
942;
Franklin, Chanin and
880

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