By Lester Brickman, Cambridge University Press, 584 pages, $25.99
Professor Lester Brickman of the Benjamin N. Cardozo School of Law has been teaching ethics since 1965, and has now delivered himself of a scorching critique of lawyers’ ethics, specifically the ethics of the plaintiffs tort bar.
His new book “Lawyer Barons” is an anatomy of practices associated with the contingency fee, which he calls “the most under appreciated of all of the elemental forces that shape our legal and political systems.”
Mr. Brickman emphatically does not believe this is a force for good. The book is an amalgam of economics, ethics and history. And it is muck-raking in an old and honorable American tradition, which means that there is no pretense of fairness, no offset for the advantages afforded by contingency arrangements and no prisoners taken alive.
There is no shortage of books and articles deploring defects in lawyer ethics. The novelty of “Lawyer Barons” is that it focuses on the contingency fee as a business model.
Mr. Brickman argues that the prevailing business model is based on a systematic conflict of interest on the part of lawyers who collect their large fraction on claims that have no appreciable risk; who collect fees on the portion of recoveries that were available at the outset, without counsel or litigation; who conduct class actions that serve no one but lawyers; who spread panic over questionable mass torts; and who corrupt medicine and science itself.
The book attributes the success of this business model to the complicity of many courts and judges, the obliviousness of law professors, and the operation of the American Bar Association as a trade group.
Mr. Brickman lays all this out with the relish of a medical researcher who has a disease all to himself.
It is not for me to say whether this is a fair indictment, or whether tort reform is indicated (such reforms have had mixed results in any case). Indeed, the book does not absolve my cohort of appellate judges of responsibility for abuses (though a necessary reviewer’s disclosure, I am quoted).
The book amounts to a call for remedial action by honest members of our profession, and is convincing on the level that the professional institutions, including bar associations, courts and law schools, should look into these claims and consider whether remedial action is indicated and feasible.
The book can also be misused as a sort of devil’s how-to book, with sections on mass-torts and class-actions discussing fee experts, other experts, reversionary settlements, fanciful settlement valuations, and the use of coupons. These techniques may offer considerable temptations. The book alleges that about $17 billion of fraud was built into settlement of nonmalignant asbestos litigation; that “lawyers specializing in aggregative litigation” are obtaining hourly fees between $5,000 to $25,000 (so that they may tuck away $1 million in a good week’s work); and that “in some mass tragedies with no litigation risk, lawyers pocket fees of $20,000 to $30,000 an hour.”
To locate abuses, Professor Brickman looks at internecine fee litigation among plaintiffs’ lawyers themselves, and reports: individual lawyers billing 48 hours in a single day, or 72 hours; and—this is new—a lawyer billing for putting a transcript into a room, and another billing 1½ hours for a conference with himself.
The practices identified in “Lawyer Barons,” and alleged to be widespread, closely resemble the business practices that the legal profession condemns everywhere else. The book quotes—with relish—the following observation of U.S. District Judge F.A. Little: “It is a sad day when lawyers transmogrify from counselors into grifters.”
I concede that I react with some defensiveness to those passages that allege complicity of judges. Without blanket proof, Mr. Brickman argues that some judges discount or disregard the duty to enforce ethical standards, and become enablers of abusive practices.
One benign principle that he identifies as conducive to corrupt results is the policy favoring settlements, so that the bigger the settlement and the more numerous the claimants, the happier the judge will be to have it all go away; and in aid of settlements, or out of industrial solidarity, Mr. Brickman sees judges as enforcing contingency fee agreements with a rigor unknown to any other contract of adhesion, and, particularly in class actions and mass torts, giving only passing scrutiny to conflicts of interest and breaches of fiduciary duty.
The book bluntly contends that lawyer-friendly rulings may be influenced—or predicted—based on the composition of various state supreme courts: the presence of plaintiffs’ lawyers on the bench, and the influence of their campaign money. A cold eye is cast on systems by which justices are selected by lawyers.
Mr. Brickman presses the irony that few professions have ethics rules so numerous and ramified as the legal profession. In their number and detail, our codes, rules and canons befit a profession that is essentially self-regulating. But enforcement, Mr. Brickman argues, is another matter.
The argument of the book is propelled by narratives and punchy case-studies. Particularly arresting is the class action sparked by the potential risk of data loss in laptop computers caused by a glitch in the floppy disk controller.
Although the problem was fixed by a free software patch that few laptop owners bothered to install, the class action, Shaw v. Toshiba in the Eastern District of Texas, settled for rebates and trinkets touted as worth $2.1 billion, but costing Toshiba half that—with lawyers pocketing $147.5 million.
Professor Brickman uses the case to illustrate “how class actions have become one of the most lucrative methods of wealth creation ever devised.” The book implies that such abuses are commonplace, and maybe they are; but proof of that is hard to come by, and this part of the book settles for horrible examples that do not in themselves support the breadth of the indictment.
Economic distortion caused by our tort system is familiar ground. But it seems to me that the book covers new ground in discussing how tort litigation has the effect of imposing regulatory regimes that are not blessed by administrative agencies or legislatures.
Among the instances cited are the malpractice suits that influence the number of Caesarian deliveries, litigation over replacement parts designated by auto insurers for collision damage, and litigation against HMOs.
The book offers a number of bonuses.
The foreword finds Professor Richard Epstein in good form as he describes the expansion of tort liability of the past two generations as being, “in terms of the dollars at stake, greater than any and all transformations of tort law during the previous thousand years.”
At the other end of the book, the appendices offer a variety of provocative observations, and the footnotes do much more than furnish scholarly reference points.
Appendix G—”Other ways lawyers gain class action fees”—is, I fear, a text for the unscrupulous. Among the edgy footnotes are: the author’s advice to victimized clients of lawyers; the special and deferential treatment that lawyers enjoy at the hands of the U.S. Supreme Court; and the phenomenon in which people rush to get aboard after a bus accident.
It is really impossible to say, as a lawyer or judge, that one has enjoyed reading a book of this kind, though there is about it the sort of fascination one has in being let in on the workings of a particularly long con, involving astonishing amounts of money.
Although the book may not establish that the abuses it identifies are endemic or epidemic, it would seem that the profession should confront the claims, investigate the scholarly underpinnings offered in the footnotes (I have not), and adopt internal reforms as may be indicated, as a matter of hygiene and professional obligation.
A lot is at stake: Mr. Brickman contends that, “because our tort system has been shaped by a profit motivation, it fails in its essential purpose.”
As is obligatory in a book of this kind, Mr. Brickman undertakes to offer solutions in a section for which, however, the author makes only modest claims. In this he is too modest. A number of the proposals he discusses—conceived by himself and others—deserve close evaluation as reforms that promote justice, quite apart from whether they are compelled or justified by the abuses identified elsewhere in the book.
Among other measures, the book makes a case for: limiting contingency fees to value added to a case, computed by reference to an early settlement offer; re-thinking the loser-pays principle on a basis that allows the loser’s tort lawyer to pay in lieu of the loser; the ability of auto-insurance consumers to opt out of making claims or seeking recovery for pain and suffering; and adjustments to the American Rule for “entrepreneurial” class actions—which are what you think they are.
Mr. Brickman has made the case for a re-thinking of contingency fee arrangements. Considering the powerful role of such arrangements in the shape and evolution of the American legal system, that is a considerable achievement.