Alaska Employment Law

Yesterday’s Wall Street Journal (09/25/07 WSJ, A-18) carried an op-ed piece by Yeshiva University Law School professor Lester Brickman that publicizes a request for a Formal Opinion from the American Bar Association concerning plaintiff counsel’s negotiation with defendants for direct payment of plaintiff’s fees. 

The request comes from 20 law school faculty members who apparently are experts in legal ethics.

The faculty members argue the following six points: 

Proposition 1
In the absence of statutory authority, attorneys who seek recovery on behalf of clients or classes and negotiate for the direct payment of their fees by defendant adverse parties and/or their counsel do so in what, at a minimum, is a presumptive but rebuttable violation of their fiduciary duty to their clients; more preferably, such practice should be deemed per se unethical.

Proposition 2
In the absence of a per se ban against such agreements, attorneys should submit a reviewable, written submission to their clients demonstrating that no practicable alternative form of fee payment was available and that, in practice and in fact, counsel had been faithful to their clients’ interests at the expense of their own.

Proposition 3
Any provision in such agreements that in any way limits, insulates or precludes judicial or ethics-based review of the propriety of the fees should be per se unethical.

Proposition 4
More specifically:  It is per se unethical for plaintiffs’ attorneys to agree to any provision in such agreements that in any way compromises the right of the clients or classes to recover fees deemed excessive or unethical by such review.

Proposition 5
More specifically:  Any provision in such agreements that in any way makes the validity or enforceability of the agreements contingent on the payment of the fees negotiated between defendants and plaintiffs’ attorneys should be per se unethical.

Proposition 6
More specifically: All such agreements should be expressed in terms of a single settlement sum payable to the plaintiffs from which the plaintiffs’ attorney fees are to be deducted, and any representation that expresses or implies that payment by defendants of the plaintiffs’ attorneys fees does not limit the recoveries of the plaintiffs should be unethical.

The 30-page, 91-footnoted letter is backed up with citations helpful in this sticky area of law.  09/17/07 L. Brickman, et al., letter to ABA Standing Committee on Ethics and Professional Responsibility