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26 N.Y.U. J. Legis. & Pub. Pol'y 1 (2023-2024)

handle is hein.journals/nyulpp26 and id is 1 raw text is: CONTINGENCY FEE CONFLICTS: ATTORNEYS OPT FOR QUICK-KILL SETTLEMENTS WHEN THEIR CLIENTS WOULD BE BETTER OFF GOING TO TRIAL Steve P Calandrillo, * Chryssa V Deliganis, ** and Neela Brocato*** Despite the checkered history of contingency fees in the practice of law, attorneys often claim that suchfee arrangements perfectly align the interests of lawyer and client. After all, contingency fee lawyers proclaim in TV ad after TV ad, we don't get paid unless you win! That superficial logic does not with- stand economic scrutiny. Utilizing a behavioral economics lens, this Article demonstrates that contingency fee arrangements give attorneys excessive in- centives to settle cases that their clients would be better off taking all the way through trial. In addition to highlighting this undertheorized problem in law, we offer normative recommendations to help alleviate the conflict. Ultimately, we need to devise a hybrid fee system that provides compensation proportionate to how hard an attorney works, provides incentives for the best possible outcome for her client (whether obtained at trial or via settlement), and ensures that low-income plaintiffs can still obtain access to the doors of justice. INTRODUCTION ...................................... .. 3 I. HISTORY OF CONTINGENT FEES AND THE EVOLUTION TOWARDS ACCEPTANCE............................ 5 A. English Jurisprudence and the Doctrine of Champerty in England ...................... 5 * Jeffrey & Susan Brotman Professor of Law, University of Washington School of Law. stevecal@uw.edu. ** Visiting Assistant Professor of Law, Seattle University School of Law, cdeli- ganis@seattleu.edu. *** J.D., University of Washington School of Law. Eugene Wright Scholar Award Recipient. neelae@uw.edu. Thank you to Jonathan Moskow, Irwin Yoon, Steve Yin, Anna Deliganis, George and Cally Webb, and Nick, Sophia and Alexia Calandrillo for their inspiration and com- ments on prior drafts. Our gratitude as well to the faculty, students and staff at the University of Washington and Seattle University Schools of Law for their suggestions on this paper, especially participants in Prof. Deliganis' Professional Responsibility lectures at Seattle University. Finally, we deeply appreciate the support of the Jeffrey & Susan Brotman Professorship and the Marian Gould Gallagher law librarians at the University of Washington. 1 Imaged with Permission of N.Y.U. Journal of Legislation and Public Policy