Sunday, June 3, 2007

Fee Caps In Contingency Cases

An illegal fee should be per se unreasonable under Rule 1.5. In response to a request to intervene from the Indiana Trial Lawyers Association("ITLA"), the Indiana Supreme Court issued an opinion clarifying an earlier agreed disposition in a disciplinary case that reprimanded an attorney who had charged in excess of a 15% statutory maximum in a medical malpractice case. The court states that an attorney and client may contract for a fee that in effect exceeds the 15% without running afoul of the ethical rule. The court notes the importance of a client's freedom to hire competent counsel.

A concurring opinion notes that "[i]t is far from clear that [this opinion]  represents the best policy for determining unreasonable fees at the interesection of Rule 1.5 and the medical malpractice statute" and that the majority was engaging in rulemaking in the context of a stipulated discipline case.  However, the opinion further notes that the concerns of ITLA were well substantiated and that the defense bar had not objected. (Mike Frisch)

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