Is this malpractice waiting to happen or a sound policy?
The post Can Law Firms Fine Attorneys For Not Taking Clients To Trial? appeared first on Above the Law.
‘Thank you! Now I won’t be fined.’
Firms that rely on trial advocacy need their lawyers to, you know, go to trial. It’s like calisthenics and attorneys who aren’t routinely going through the crucible of trial can see their skills atrophy. Consider Rudy Giuliani, who used to appear in court all the time as a federal prosecutor and now he thinks this is an acceptable courtroom strategy.
But can a firm introduce financial incentives to push its lawyers into court. Potentially to the detriment of their clients? This conversation kicked off after an interesting LinkedIn post from Mockingbird Marketing president and Lunch Hour Legal Marketing podcast co-host Conrad Saam:
Imagine the client suffering from a debilitating injury rejecting a big-ticket settlement offer and then heading into court as their lawyer turns to them and explains…
If the firm considers a lawyer picking up a pro bono criminal trial on behalf of a client that the prosecutors refuse to deal with because they know they’ve got him up against a three-strikes law or something, that’s fine. But if the firm is telling its attorneys to potentially compromise the best interests of their clients to pad their own wallets?
That feels like an ethical problem:
Or put more entertainingly:
And the lawyer’s problem might not be limited to the disciplinary authorities. Clients and malpractice carriers could find themselves involved:
More often than not, the client’s insurance carrier is probably trying to screw them and going to trial is in the best interest of the client anyway. But some lawyer getting toward the end of the year without a trial is incentivized by this policy to take risks that could disadvantage the client.
But consider this scenario…
One probably wouldn’t balk at the idea of awarding bigger bonuses for trial work — or at the very least awarding bigger bonuses for bigger recoveries, which would be a likely proxy — but isn’t that functionally the same? The lawyer not going to trial is still making less than peers who are.
Is there something uniquely problematic about structuring the policy as a disincentive rather than an incentive? There probably shouldn’t be, but it feels like it might be.
But the key takeaway is if you are injured in an accident and it’s December, you might want to ask your lawyer about that compensation structure.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
