If the Law Ministry is to introduce conditional fee agreements (CFAs), there must be safeguards to protect clients (New payment system for lawyers under study, Aug 9).
What happens if, midway through a case, it becomes apparent that the chances of success are not as high as first thought?
Would the lawyer cut his losses, or would he be obliged by the terms of the CFA to continue with the case until trial? And if he is obliged to continue, will he do more than the bare minimum?
In cases without CFAs, lawyers can advise their clients on the pros and cons of further investigation to try and strengthen the case, then it is up to the client whether he wants to pay for it. With a CFA, there may be a conflict of interest between client and lawyer.
Another issue is that it may be difficult to find a lawyer if the case is difficult to win.
Lawyers may cherry-pick cases, for example, it is easy to estimate the chances of success for personal injury cases, but complex business and property disputes may take longer to evaluate. In agreeing to a CFA, the client owes a fixed amount regardless of whether the case takes a year to wind through the courts or is settled within a week.
Lawyers may also employ strategies that a client may not agree with, since they are the ones going into the red if the case is lost.
Lawyers may cherry-pick cases, for example, it is easy to estimate the chances of success for personal injury cases, but complex business and property disputes may take longer to evaluate.
And will lawyers charge higher than normal for the usual legal fees in certain cases to reflect the risk of not being paid if the case is lost?
The authorities should ensure that lawyers cannot be selective of cases should CFAs be introduced, and set guidelines on fees charged for risky cases.
Cheng Choon Fei