Unlike other services, a lawyer’s fee is regulated and is required to be reasonable. There are eight factors to consider in determining the reasonableness of an attorney’s fee:
1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
The factors are not exclusive and not every factor is relevant for every case, but the factors are useful to help the attorney determine if the ultimate fee charged to the client is reasonable. For medical malpractice case often the important factors are (1) through (4), (7) (somewhat), and (8).
Our firm almost always works on a contingent fee structure. Unlike most attorneys, we are only paid a fee if the client recovers money for their case. If the client does not settle or win their case, then our firm is not paid any attorney’s fees. This is simply unheard of with any other service (most lawyers, doctors, contractors, etc.) because most service professionals are not willing to risk not being paid for their work.
That is why most attorneys charge by the hour plus any expenses incurred in the representation. Although an hourly fee is a safe bet for the attorney, the amount of time involved in litigating a medical malpractice claim would mean that the majority of our citizens would be barred from the courtroom and never see justice. Attorney’s fees would be hundreds of thousands of dollars and the client could ultimately lose the case in front of a jury. Ultimately, contingency fees promote access to legal services that would be denied to most Americans if that type of fee was not available.
In New Mexico (like most other states), contingency fee agreements have certain requirements. First, the agreement must be (1) in writing, (2) signed by the client, (3) “and shall state the method by which the fee is to be determined, including percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal;” and (4) if and (5) how litigation and other expenses are to be deducted. Then when the matter is concluded, the attorney must provide a written statement showing how the amount of fees, expenses, and other matters and how much the client will receive.
Our contingency fee rate is based on two factors. First, the type of case. A car accident or more simple negligence case are charged a lower rate than a complex medical or legal malpractice or even a complex wrongful death cases. The second factor is when the case is resolved. If the case is resolved prior to filing a lawsuit, then the fee is reduced. If a lawsuit is filed and the case resolves at mediation (a settlement process towards the end of a case, but prior to trial) then another rate is charged because a lot more work is involved with litigating a case to mediation. Finally, if mediation fails and the case is going to trial, a higher rate is charged. This is because the costs and risk of trial is enormous. This fee structure also allows the client to appreciate that additional risk involves additional fees.