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Article: April 7, 2017  |  ArticlesMalpractice Alerts

On February 10, 2017, the Board of Professional Conduct issued two opinions:  Opinion 2017-1 Advertisement of Contingent Fee Arrangements and Opinion 2017-2 Duty of Judge to Report Misconduct.

Opinion 2017-1 advises that a lawyer who advertises litigation services on a contingent fee basis may not use statements such as:

  • “There’s no charge unless we win your case”
  • “No fee without recovery”
  • “You pay no fee unless you win”
  • “You pay us only when we win”

if the lawyer intends to recover advanced litigation costs and expenses from the client, regardless of the outcome of the litigation.

The Opinion says that because of the potential to mislead prospective clients, any obligation of a client to repay litigation costs and expenses must be revealed by the lawyer when advertising the services on a contingent fee basis.  If a lawyer intends to recover advanced costs and expenses of litigation from the client, the advertising must include a statement such as “contingent fee clients are responsible for the costs and expenses of litigation.”

Opinion 2017-2 withdraws Opinion 89-32 and  provides that a judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that raises a question about the judge’s honesty, trustworthiness, or fitness as a judge is required to report it to the appropriate disciplinary authority.  A judge who has knowledge of a lawyer’s violation of the Rules of Professional Conduct has an ethical duty to report it to the disciplinary counsel or local grievance committee.

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