Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law

Since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. This may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Among the more provocative contributors to this ongoing debate, Professor Steven Lubet recently reviewed our work advocating the ban against nonrefundable retainers and posed a number of questions about the per se prohibition against them. In this Article, we respond to Professor Lubet\u27s questions as well as to those posed by other scholars. In Part I, we discuss the client discharge right, the cornerstone upon which the absolute ban on nonrefundable retainers rests, and respond to a series of arguments concerning its meaning, how it may be impaired, and whether it may be waived. In Part II, we show that legitimate purposes that may be served by nonrefundable retainers cannot avoid impairing the client discharge right, but that other fee arrangements that do not impair that right can easily be designed to serve some of those ends. In Part III, we extend an invitation to address the issues we have identified to all those who believe that a per se ban against nonrefundable retainers is unnecessary to prevent the abuses they generate. We have previously extended this invitation to devise a less inclusive rule that would in a practical and self-effectuating way prohibit the abuses while permitting the attainment of legitimate purposes. Unfortunately for the debate, however, none of the participants have accepted this invitation. We therefore think it bears repeating

Alien Registration- Brickman, Rebecca (Portland, Cumberland County)

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An Analysis of the Financial Impact of S.852: The Fairness in Asbestos Injury Resolution Act of 2005

Nearly 30 years ago, the first of a series of bills to remove asbestos litigation from the tort system by creating an industry-funded mechanism to administratively pay asbestos claims was introduced into Congress. The need for a legislative fix of asbestos litigation has long been manifest. After many unsuccessful efforts to resolve the asbestos litigation crisis, the Senate is poised to take up consideration of S.852, The Fairness In Asbestos Injury Resolution Act of 2005. This essay is a preliminary effort to present some context for discussion of certain aspects of S.852 and to estimate the costs that may be incurred for resolution of personal injury asbestos claims if S.852 is enacted. To date, over 850,000 individual claimants have filed suit against over 8,400 manufacturers, distributors installers and sellers of asbestos-containing products distributed across most of U.S. industries, as well as against owners of buildings and plants in which asbestos is present, claiming injury from exposure to asbestos. Since each plaintiff sues approximately 60-70 different defendants and bankruptcy trusts, the total number of claims probably numbers in excess of 50,000,000. A number of factors account for the significant impetus to current consideration of legislative proposals that range from limiting compensation available in the tort system to plaintiffs whose injuries meet specified medical and exposure criteria to the creation of an administrative alternative to asbestos and exposure litigation. These factors include: the number of asbestos lawsuits; the almost $80 billion in costs already imposed; an even larger sum projected for future costs; 500,000 jobs lost or not created because of the litigation; the further financial consequences of the litigation\u27s impact on capital markets; and the concern for the integrity of the civil justice system as most recently voiced by a federal judge presiding over the silica MDL proceeding that X-ray readers, diagnosing doctors, screening companies and lawyers were engaged in a scheme to manufacture diagnoses for money. S.852, which is now before the Senate, is the product of an extended and extensive negotiation between a number of stakeholders, including, inter alia, businesses, insurers, labor unions, and lawyers. The bill proposes creation of a$140 billion trust ( Trust Fund ) funded mostly by business and insurers, to pay claims that meet the medical and exposure criteria set out in the bill. In this essay, I examine the financial costs, in addition to the $140 billion to be paid into the Trust Fund, which may be incurred to resolve current and future personal injury claims based upon asbestos exposure. In attempting to quantify the costs that fixing the asbestos litigation crisis may generate and, in particular, those costs additional to the Trust Fund, I am neither advocating adoption or rejection of S.852 or any other legislative fix of the massive civil justice system failure that I describe in this essay. Moreover, though I consider the costs that may be incurred in addition to the Trust Fund to be created if S.852 is enacted, I am not expressing any view as to the likelihood of the bill\u27s passage. To set the stage for my analysis, I first consider the benefits that can be realized by enacting legislation to create an administrative mechanism for resolution of asbestos claims in place of the tort system. I then present a brief history of asbestos litigation, including the development of an entrepreneurial model of claim generation, followed by a brief summary of legislative efforts to fix the asbestos litigation crisis. I then briefly summarize S.852\u27s legislative history and current format. Finally, I consider the costs which contributors to the trust fund may additionally have to bear to resolve personal injury asbestos claims. I identify five such areas of costs: 1. asbestos claims handled and paid over the past thirty months since S.1125 was first discussed; 2. exigent claimants who qualify for special treatment under S.852; 3. subrogation and workers\u27 compensation claims; 4. pending lawsuits where evidence has commenced, lawsuits where a final judgment has been entered, and certain settlements; and 5. silica/mixed dust claims. Considering only the costs that I have been able to quantify, my analysis indicates that the costs that defendants and insurers may incur for resolution of personal injury asbestos claims, in addition to the$140 billion to be paid into the Trust Fund, could range from approximately $37 billion to$60 billion. To this should be added the cost of four other exceptions that may impose costs outside the Trust Fund that I have not quantified: (i) trial court verdicts; (ii) cases where the presentation of evidence has commenced; (iii) certain settlements; and (iv) silica claims. Each will add unspecified sums to the cost of resolving personal injury asbestos litigation. The assumptions I have made in quantifying costs and the reports and studies I have relied upon (which I have not attempted to validate), may generate outcomes that are too high or too low. I have set out these costs and acknowledged my inability to quantify certain other costs, however, as an invitation to undertake a similar calculus to those who seek to meaningfully compare the costs of the tort and bankruptcy systems (which I have not attempted to quantify), with the costs that may be incurred for resolution of personal injury asbestos claims if S.852 is enacted

The Market for Contingent Fee-Financed Tort Litigation: Is it Price Competitive?

Tort liability has undergone an enormous expansion in the past 40 years. So too has the effective hourly rate obtained by plaintiff lawyers which has increased well over 1000% in that time frame (adjusted for inflation). That the enormous increases in effective hourly rates parallel the enormous expansion in tort liability raises a number of issues. In this article, I examine one of them: whether the market for contingent fee-financing of tort litigation is price competitive. To do so, I examine certain indicia of a noncompetitive market including the fact of uniform pricing, the absence of economic justification for uniform pricing such as reductions in agency costs or transactional costs, inelasticity of the price in light of highly variable production costs and the absence of price advertising. I then examine factors which inhibit the emergence of a price competitive market including asymmetrical knowledge, the utility of uniform pricing in misleading consumers as to risk, and the signaling function of uniform pricing. I then examine the reasons for the persistence of uniform pricing in the face of the predictions of economists applying standard economic theory that some lawyers would undercut standard pricing thereby generating competitive behavior that would more closely align pricing with risk and the variable cost of producing the service. I attribute the persistence of uniform pricing to market failures and analyze the reasons for such failures. Finally, I examine the actions of the bar designed to prevent a competitive market from emerging. These actions include the maintenance of barriers to entry into the tort claiming market, prohibitions against the outright purchase of tort claims and adoption of rules of ethics effectively prohibiting price competition including prohibitions against providing financial assistance to clients and brokerage of lawyers\u27 services for profit

Educating Dietetics Students about the Nutritional Concerns of Older Adults

The percentage of individuals in the United States who fall within the 65 years and older cohort is anticipated to increase substantially over the next decade due to the large baby boomer generation aging into this category by 2030. Consequently, the healthcare demands of older adults are expected to increase, and medical and healthcare providers must be educated and prepared to meet the unique needs of this population. The purpose of this study is to help learn why interest in FSN 406 Nutritional Care of Older Adults has been so low since its inception in 2020, and whether other institutions offer classes on nutritional care of older adults to students in the nutrition and dietetics field. Two surveys were developed for this study, one for students at the University of Maine and another for members of the Nutrition and Dietetics Educators and Preceptors (NDEP) subgroup of the Academy of Nutrition and Dietetics (AND). Recruitment notices for student surveys were distributed via email to all students enrolled in the Food Science and Nutrition (FSN) program during the 2021-2022 academic year. Inclusion criteria included being over the age of 18 and being enrolled in an undergraduate or graduate FSN program during the 2021-2022 academic year. A total of 17 surveys were completed. Recruitment notices for NDEP surveys were posted to the community\u27s webpage, and members were encouraged to share the recruitment notice with their colleagues. Inclusion criteria included being over the age of 18 and being a member or colleague of the NDEP group. A total of 53 surveys were completed. Student survey results indicated that most FSN students did not take FSN 406 because it was not required for graduation. NDEP survey results indicated that participants felt both undergraduate and graduate-level courses on nutrition for older adults should be taught, though this is not available at all institutions. Further research regarding effective strategies for increasing national student interest levels in nutrition for older adults and making older adult-specific nutrition courses available at a much greater number of institutions is necessary

A Rejoinder To The Rejoinder To On The Theory Class\u27s Theories of Asbestos Litigation

This short essay is a partial response to an essay by Professor Charles Silver contesting assertions I set forth in an article titled, On The Theory Class\u27s Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality , 31 Pepp. L. Rev. 33 (2003-04), in which I responded to several personal attacks against me by Professor Silver. Since Professor Silver was permitted to substantially add to his essay after I submitted my Rejoinder and I was not provided with these extensive additions, my response is necessarily incomplete. Professor Silver\u27s essay is titled, A Rejoinder to Lester Brickman , 32 Pepp. L. Rev. 765 (2005). In this exchange on the academic field of battle, bluster meets fact in a head-on-clash. This mictuating match has two redeeming features. One is a discussion of the obligation of an academic, in relation to scholarship, to disclose any personal interest such as a retained advocacy relationship. I favor such disclosure; Professor Silver did not. In addition, there is a brief discussion of the role of the law professor within the legal profession. Professor Silver advances the view that law professors\u27 self-interest should lead them to hold pro-lawyer views and they should therefore not criticize the legal profession because that contributes to the low public esteem in which the bar is held. I demur. In my view, that low esteem is not due to criticisms of various practices of lawyers and the bar but rather to the failure of the bar to curb abuses and to thus enforce its own standard set forth in the Preamble to the Model Rules of Professional Conduct that the bar should act in the public interest and not in furtherance of [its] parochial self-interested concerns. . .