Attorneys' Fees

If you're a plaintiff in a mass tort, what should you know about attorneys' fees? Here's a quick primer. All plaintiffs--mass tort or otherwise--are likely to see fees and costs broken down into:

• the contingency fee your attorney charges (somewhere in the neighborhood of 33%) and

• litigation costs (for things like copies, expert witnesses, medical reports, etc.).

In mass torts, however, judges often appoint what I call "lead lawyers." These are attorneys who conduct work on behalf of not just their own clients, but all of the plaintiffs in the proceeding. Judges have begun instituting common-benefit holdbacks, where they withhold a portion of a plaintiff's settlement proceeds to pay these lead lawyers for common-benefit work at then end of the entire proceeding.

Common-benefit fees should be deducted from the individual plaintiffs' attorney's contingency fee--not heaped on TOP of that contingency fee. So, a plaintiff who agrees to a 33% contingency, still pays 33%, it just means that her lawyer must share a portion of that fee with the lead lawyers.

Special rules apply when plaintiffs' lawyers receive an "aggregate settlement offer." An aggregate settlement settles the claims "of two or more individual claimants" with independent claims, meaning that "the value of each claimant's claim is not based solely on individual case-by-case facts and negotiations." (Principles of the Law of Aggregate Litigation 3.16 (Am. Law Ins. 2010).

In aggregate settlements, the American Bar Association's Model Rule of Professional Conduct 1.8(g) requires attorneys to tell clients:

• the total amount of the aggregate settlement;

• existence and nature of all of the claims and defenses involved in the aggregate settlement;

• whether other clients are participating (and, if so, how much they will receive);

• that client's settlement amount;

• attorneys' fees and costs; and

• how those attorneys' fees and costs will be shared among the clients.

In short, Rule 1.8(g) entitles clients to learn "about all the material terms of the settlement."