At our firm we handle a lot of complex litigation, very often on a risk-sharing basis. That means we are willing to reduce the hourly rates we charge in return for a contingency fee if we obtain a good result for the client, as agreed upon in some fashion in our engagement letter. Clients like this since they see us as in it with them: if they win, we do. If they don’t achieve what they sought, we get paid less.
Many business clients have commented to me over the years that when dealing with lawyers who don’t bill this way — when dealing with lawyers who bill by the hour way, as is typical — such clients think that these lawyers have little concern for the fees the clients have to pay, or the result. Indeed, many business clients tell me that they think these lawyers are just trying to bill as much as they can to increase their bill.
Goodness knows I’ve seen churning and more than once have been adverse to a well-resourced firm where they simply seemed to pile the bodies onto the case and litigated every tiny thing even when I could see no tactical or other benefit to their client. Overbilling (as opposed to inaccurate billing) certainly happens. Whether it does as frequently as my clients have complained is beyond the scope of this short article. But I acknowledge it happens.
As lawyers we must be mindful of all the costs that our clients incur in a litigation, and legal fees are only one of those costs. Part of being good counsel is determining: is it really worth the salt to fight? I find myself frequently advising prospective plaintiffs or claimants to consider alternatives to litigation or arbitration. I likewise find myself advising defendants to consider paying something even when they believe they have done nothing wrong, simply to put a litigation behind them. Costs — including not just money, but time — matter, and as advisors we must keep this in mind with regard to the counsel we give our clients.
But what we cannot — or at least should not — do is let our own fee interest dictate our advice, or how we fight. I’m not saying we’re to be taken advantage of — we’re not. But that’s different than allowing our fee interest to dictate how hard we fight, or not, or what tactical suggestions we make to the client. As noted above, our risk-sharing clients in fact think we do do that, and like us for it. Risk sharing helps in client relations. We must also be mindful of our higher ethical and professional obligations to give the appropriate counsel to the client, and, as they say, zealously advocate for the client, regardless of the fee.
Lawyers will generally litigate a smaller case differently than a big case, and, indeed, we often should. But that’s because the costs and results might be different to the clients between those cases. We cannot let our fee interest dictate how we advise our clients, or how we try to win for them.
John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at firstname.lastname@example.org.