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Is my contingency retainer agreement a standard one? Is it typical for a client to pay for expert witnesses etc.

New York, NY |
Filed under: Personal injury

I have just signed a contingency retainer w/ a personal injury attorney....fee 1?3 of the total gross amt and that % is a lien on the ultimate recovery.
I will be responsible for court reporters,court fees,experts, consultants,investigators,Admin. fees,WESTLAW legalresearch (?). I may be asked to provide advances to be put into an attorney trust acct.< from which expenses may be dispersed. Any balance remaining will be refunded to me.

Attorney Answers 4

Posted

It is impossible to say for sure without being able to see your agreement. But this sounds pretty standard. Here in Michigan, the courts have determined that the client is required to pay for the expenses of the lawsuit. Normally, in Michigan, you would get credit for paying these, when the lawsuit settles or a judgment is awarded. The fee would be on the "net recovery," not the gross. This could certainly be a difference from one state to another.

Best of luck to you!

James Frederick

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Posted

I never seen such clauses in the retainer:
"I may be asked to provide advances to be put into an attorney trust acct.

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4 comments

Yefim Rubinov

Yefim Rubinov

Posted

In other words I think it is strange for an attorney to ask a personal injury plaintiff to ask to advance expenses.

James P. Frederick

James P. Frederick

Posted

I see that happen a lot here in Michigan. Clients are required to pay the expenses, here.

Maurice N Ross

Maurice N Ross

Posted

I don't think this is strange at all----this is quite standard in New York. By the way, I am surprised about some of the comments. As an ethical matter, lawyers cannot agree to fund the client's expenses in pursuing litigation (court filing fees, expert fees etc), nor can lawyers agree in advance to waive those expenses. I think this ethical rule is quite clear in New York----and I am surprised that some colleagues do not follow it. It has long been deemed unseemly for lawyers to invest in cases by paying the costs of expert fees, depositions, etc----and it is entirely appropriate that these costs be considered by the lawyer and client in the mix of information relevant to considering whether to settle the case.

James P. Frederick

James P. Frederick

Posted

This was my understanding as well, Maurice, but I did not know if the rules were different in New York. This strikes me as the right approach, from an ethical standpoint.

Posted

While it is not standard practice to establish an escrow account to pay for disbursements it is standard practice to make it the client's responsibility to pay same. Many attorneys will waive disbursements if the case is unsuccessful. Most will advance the fees on behalf of the client. The rest of the retainer seems standard.

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Asker

Posted

Richard, thank you for your reply, it was very helpful. What "dibursements" would many attorneys waive if the case is unsuccessful....?

Richard J. Chertock

Richard J. Chertock

Posted

That depends on the case, the attorney and the amount of the disbursements. In my own practice I have waived such things as postage, copying, federal express, index number and request for judicial intervention. A lot depends on how confident the attorney is in getting a recovery. In this case I suspect that either the attorney lacks confidence in obtaining a recovery or, as suggested by Mr. Gold, he may pressure you to accept a settlement or fund the escrow account to proceed to trial. Another possibility is that he has lost cases in the past then had difficulty recovering the disbursements. Either way it does make me question his confidence in the case and his ability to obtain a successful outcome. If he were confident that he would at least get a settlement offer he would not be concerned with the disbursements as they come off the top of any recovery. I have no such provision in my retainer agreement.

Asker

Posted

Richard, thank you for your help....one last question...? I just signed w/ this attorney today....how long do I have to pull out if I have very real concerns even after perhaps having a phone conversation tommorrow to clarify the terms of the contingency agreement. I wishthat I didnt cave in to the pressure of the moment....I have 2 other attorneys that I could perhaps meet and consider.......my case has created great "professional distrust".....as I was first injured by a Dr., then by an attorney...and have had a few near misses with potentially considering an attorney for the legal malpractice portion of my litigation that was completely not right for my case and would have limited my chances of recovery, as he is personal friends with on of the partners of the law firm I am suing......Im really troubled by this!!!!

Posted

Most of the retainer is fairly standard. Attorneys have a right to collect expert fees in advance, but few do,and even few put in the retainer up front for the fear of offending and deterring prospective clients. . I am concerned that the clauses in the contract you signed, will be used toward the end of the case by the attorney to force you to settle. Don't be surprised if once a settlement offer is made, the attorney turns to you and says "take the offer or put 30k in the expert fund so we can go to trial, and if you don't, I'll withdraw. " Anyhow, let us know in a couple of years how it works out.

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email - Jgold@goldbenes.com

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Asker

Posted

Jeffrey, your response to my question is very helpful and frightens me....I already signed the retainer....I asked about the fees before signing.....I have been interviewing attorneys for a while now....My case is a medical Malpractice case that has now become a legal mal prac due to my original attorney's failure to start my lawsuit in a timely manner....In other words, he allowed the statute to run.....I just signed today>>>>but feeling troubled by it.....How can I revisit the discussion w/ this attorney without offending him or starting on the wrong foot....?

Joseph Jonathan Brophy

Joseph Jonathan Brophy

Posted

I agree with Jeffrey, that's why the attorney has the right to ask you for money for experts down the line. I advance all expenses and if my client loses, they don't have to repay me. But, have a clause in my own retainers that permits me to refuse to advance expenses in my discretion. I tell the client right up front it is so I can control a possible settlement if they disagree with my advice. I have had to invoke that clause maybe twice in my entire career. If clients complain about it I am not offended, I just will tell them they are free to find another lawyer who offers them a better deal.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Joe - I don't have that clause in my retainers, but I think I'll add it.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Asker - You signed the retainer, but you have the right to change attorneys. You can call the attorney, and tell him/her that you've changed your mind, and your going to hire an attorney that does not require you to advance expert fees. If he thinks its a good case, then he'll remove the clause. I've handled med mal cases as part of a legal mal case. It's difficult. Here the legal mal claim is easy - missed statute - but proving that you would have succeeded in a malpractice case is pat of the claim, and that is often difficult.

Maurice N Ross

Maurice N Ross

Posted

Jeffrey---I cannot agree with you on this. I think this is a standard clause---and from an ethical view I believe clients are required to fund the expenses of pursuing cases that lawyers take on a contingency. The concern about settlement arises only when the lawyer allows the client to evade payment obligations as the case proceeds---and then the client owes a big sum at the time settlement is being considered. If the client had been meetings its obligation all along (and if the lawyer had been complying with the ethical obligation to require the client to fund the case), then this settlement conflict would not arise.

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