senate Bill S2541

Repeals section 474-a of the judiciary law relating to contingent fees for attorneys in claims or actions for medical, dental or podiatric malpractice

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 25 / Jan / 2011
    • REFERRED TO JUDICIARY
  • 04 / Jan / 2012
    • REFERRED TO JUDICIARY

Summary

Repeals that restriction of the judiciary law prohibiting contingent fees and requiring a sliding scale fee for attorneys in claims or actions for medical, dental or podiatric malpractice.

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Bill Details

Versions:
S2541
Legislative Cycle:
2011-2012
Current Committee:
Senate Judiciary
Law Section:
Judiciary Law
Laws Affected:
Rpld ยง474-a, Judy L
Versions Introduced in 2009-2010 Legislative Cycle:
S2040

Sponsor Memo

BILL NUMBER:S2541

TITLE OF BILL:
An act
to repeal section 474-a of the judiciary law, relating to contingent
fees for attorneys in claims or actions for medical, dental or
podiatric malpractice

PURPOSE:
To repeal Section 474-a of the Judiciary Law relating to
contingent fees in medical, dental or podiatric negligence cases.

SUMMARY OF PROVISIONS:
Repeals Section 474-a of the Judiciary Law
relating to contingent fees in medical, dental or podiatric
malpractice.

JUSTIFICATION:
Since this statute was passed, experience has shown
that the sliding scale fee schedule works to the detriment of the
injured citizen. It creates an inherent conflict between the interest
of the injured patient and the attorney that has agreed to take on
the task of proving the case. An example would be as follows:

An attorney believes a case may well bring a verdict of at least 1.5
million dollars. He or she is offered five hundred thousand dollars.
Below is the application of the fee formula set forth in the existing
Section 474-a:

30% of the 1st $250,000 = $75,000
25% of the 2nd $250,000 = $62,500
20% of next $500,000 = $100,000
15% of next $250,000 = $37,000
10% of the balance ($250,000) = $25,000

It can be seen that the fee schedule encourages lawyers to
recommend their client settle rather than go to trial. This exact
rationale is set forth in the Governor's Program Bill Memorandum in
Support, and reads as follows: "By permitting attorneys to recover
30% of smaller awards and a declining percentage thereafter,
attorneys would be encouraged to accept reasonable settlements
that protect the plaintiffs interest."

This statement exhibits a total misunderstanding of an attorney/
client relationship. It is the client who accepts a settlement, not
the lawyer. If the purpose of the bill was "to
encourage lawyers" by pitting them against the interests of their
own clients, then such bill may have been successful, but its
intent and result are volitive of Ethical Consideration 5-1 of the
Code of Professional
Responsibility, which provides that "The professional judgment of a
lawyer should be exercised, within the bounds of the law, solely for
the benefit of his client and free of compromising, influences and
loyalties. Neither his personal interest, the interests of other
clients, nor the desires of third persons should be permitted to
dilute his loyalty to his client".


Ethical Consideration 5-2 provides, in part, that a lawyer should not
accept a case if there is a reasonable probability that his personal
interest will adversely affect the advice given the client.
That same Consideration maintains that a lawyer should not assume a
position which would tend to make his judgment less protective of his
client's interests.

For these reasons, Section 474-a of the Judiciary Law should be
repealed.

LEGISLATIVE HISTORY:
S.6596 of 1994; S.1968 of 1995-96; S.109 of
1997-98; S.554 of 1999-2000; S.379 of 2001-02; S.320 of 2003-04; S.36
of 2005-06; S.790 - 2007-08; S.2040 - 2009-2010

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2541

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 25, 2011
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary

AN ACT to repeal section 474-a of the judiciary law, relating to contin-
  gent fees for attorneys in claims or actions for  medical,  dental  or
  podiatric malpractice

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 474-a of the judiciary law is REPEALED.
  S 2. This act shall take effect immediately.








 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03767-01-1

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