Arizona Bar Ethics Committee Opinion 93-05
March 17, 1993
The Arizona Bar Ethics Committee ruled that a contingency fee agreement with a Trial/Jury Consultant is ethical under the following guidelines (quotes taken from Opinion 93-05)
1. “A lawyer may advance court costs and expenses of litigation on behalf of a client provided that the client, unless indigent, remains ultimately liable therefore. …Because of the client’s ultimate responsibility for payment, the client should be a party to the contract with the consultant. In addition, the client should be fully advised by the inquiring attorney as to the terms of that contract as to the client’s ultimate financial responsibility thereunder.”
2. “…[A] lawyer must exercise independent professional judgment. …[T]he inquiring attorney must ensure that the consultant does not, infringe upon the attorneys ethical duty to retain full control of the litigation.”
3. “ER 3.4 (b) is not implicated. However to avoid any uncertainty on this issue, the contract with the consultant could specify that the consultant will not testify.”
4. “The fees charged by the inquiring attorney should be computed and paid without reduction by the fees paid to the consultant.”
5. “Consequently, in performing services for the inquiring attorney, the consultant may not engage in any activity that constitutes the practice of law.
Lītigāre’s fee structure is in compliance with the Arizona Bar Association’s ethical decision as described in the following quote. “Assuming, however, that the foregoing ethical concerns do not arise with respect to the proposed consulting arrangement, the arrangement appears to be ethically permissible.”
Lītigāre’s Services Agreements:
1. Our consultant’s work with the trial lawyer and their client to ensure that the client understands our service agreement and who is ultimately responsible for payment.
2. Our operating structure fortifies independent professional judgment because Litigare consultants are only advisers and tangential to the case.
3. We are not testifying expert witnesses.
4. We agree with your client on a flat fee that is payable only if a settlement or recovery occurs and that fee comes directly from the client’s portion of the recovery.
The role of a Litigare consultant is to assist
the trail team with psychological strategies.