Lawyers who wish to structure their fees before the end of 2009 should be getting their ducks in a row BEFORE the case settles.
For example,
Does your retainer agreement address attorney fee structured settlements?
Does your partnership document address structuring fees?
There are other planning considerations.
Plan ahead and work with a settlement planner, ideally a Registered Settlement Planner (RSP). Run some hypotheticals, get an idea of what might work for you and be ready to go so that you aren't in a situation where your interest is in conflict with your client (i.e. client wants to get paid now, you want time to figure out what you want to do).
Care must be taken when the plaintiff is not structuring to avoid constructive receipt. We recently encountered an odd request from a co-broker on behalf of an attorney to have two separate releases, one for the plaintiff who wanted to get paid right away and another for the attorney who wanted to structure his fees, but had not made his mind up about the format. The problem was attorneys have no causes of action to release. They are creditors of the plaintiff with respect to the fee owed, perfected by a lien on the plaintiff’s recovery. Except in Alabama and Michigan, attorneys have no ownership interest in the plaintiff’s lawsuit.
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