Wednesday, October 10, 2007

Contingent Fee Set-Off In Legal Malpractice

The Poppe Law Firm Blog of Louiseville Kentucky today published a post, here, discussing the debate over whether an attorney subject to a malpractice suit can seek a set-off of the contingent fee they would have earned if they had been successful in the case.

My Comment:

I know that in New York you cannot take a set-off, and it makes sense. The 1/3 now goes to the malpractice lawyers, not the tortfeasor lawyers. For the tortfeasor attorneys it seems unfair, since they have the double-hit of not only losing the fee but also paying the damages. There is nothing unfair about that, however, because the tortfeasor attorneys are the ones who screwed up, and thus should not be allowed to complain about their own lost profits. If a doctor commits malpractice and kills someone, he cannot claim a set-off for the profits he would have gained from seeing that patient in the future; the attorneys fee setoff relies on the same rational.

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