Willamette Lawyer | Fall 2011 Vol. XI, No. 2

Page 44

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An exonerated prisoner …


… hires a lawyer to sue the state for wrongful imprisonment. The agreed contingency fee is 25 percent of any award. But instead of filing a lawsuit, the attorney successfully lobbies the state legislature to increase the payouts for wrongful imprisonment.

Is it ethical for the lawyer to then claim a share of the increased compensation for his client?

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If the lawyer’s fee agreement references litigation recovery only, the lawyer will be on thin ice seeking recovery from amounts payable to the client as a result of legislation. The vagaries of the legislative process and whether the attorney’s efforts really resulted in the recovery give the client too many weapons to wield in a battle over fees for legislative recovery. The fact of the matter is, when a fight with a client over money moves into the ethical arena, attorneys bring a knife to a gun fight. If the attorney clearly defines the legislative effort as work for the client and obtains the client’s consent to a reasonable fee, there is no ethical reason why the attorney cannot recover a fee based on the recovery. The lawyer’s claim to such a fee will likely be supported by the fact some sort of claim would need to be filed for the compensation and the attorney would prepare and file the claim. If, on the other hand, the attorney meets the client, has the client sign a form fee agreement tailored toward litigation and then obtains and takes a fee from relief granted by the legislature, the attorney is pulling a dull butter knife to defend himself against a client holding an automatic rifle with a full clip. — Mark C. Hoyt JD’92, managing partner at Sherman Sherman Johnnie & Hoyt, LLP

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