12 Cardozo L. Rev. 1417 (1990 - 1991)
A Massachusetts Debacle: Gagnon v. Shoblom

handle is hein.journals/cdozo12 and id is 1443 raw text is: A MASSACHUSETTS DEBACLE:
Lester Brickman *
In Gagnon v. Shoblom,I a case widely noted in the news media2
and closely watched by the plaintiffs' bar, the Massachusetts Supreme
Judicial Court reversed the trial court's determination that a one-
third contingent fee amounting to $975,000, was outrageous and un-
conscionable. In an inerudite3 and uninformed4 opinion, the court
upheld the one-third fee and effectively rejected the applicability of
fiduciary principles and ethical rules to plaintiffs' lawyers' fees pro-
vided their clients did not object. The authoritativeness of the court's
opinion is questionable.' Substantively, the decision rejects the
Professor of Law, Benjamin N. Cardozo School of Law
Gagnon v. Shoblom, No. 88-2105 (Super. Ct. Hampden County Feb. 20, 1990), rev'd,
409 Mass. 63 (1991).
2 See, e.g., Fees Out of Line?, NAT'L LAW J., Feb 12, 1990, at 6; Kennedy, Reduction in
Lawyer's $975,000 Fee Is Unanimously Reversed by SJC, Boston Globe, Jan 11, 1991, at 42
(city ed.); Bates, Key To The Courthouse, LAWYERS MONTHLY, Sept. 1990, at 1; Green, Judge
Decides Big Lawyer Fee Is Out of Order, Wall St. J., September 9, 1990, at BI, col. 6.
3 The court did not discuss or otherwise indicate familiarity with contingent fee literature
or case law or the issues raised therein. For an analysis of both the literature and case law, see
Brickman, Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark?,
37 UCLA L. REV. 29 (1989) [hereinafter Contingent Fees].
4 Since the client did not object to the one-third fee, the appeal by his attorney to the
Massachusetts Supreme Judicial Court was ex parte in nature. The trial judge's opinion was
not represented. The attorney's position was supported by amicus briefs filed by the Massa-
chusetts Bar Association and the Massachusetts Academy of Trial Attorneys. The lack of
opposition resulted in the court's being uninformed of opposing arguments.
5 The ex parte nature of the appeal raises issues similar to those raised in In re Application
of Cooper, 22 N.Y. 67 (1860). The issue in Cooper broadly dealt with who had the authority to
regulate the practice of law in New York: the courts or the legislature. More specifically, the
issue was the validity of a legislative enactment providing that the graduates of Columbia Law
School should be admitted to the bar without judicial examination. Id. at 87-95 (discussing
the constitutionality of 1860 N.Y. Laws  202). The lower court had decided that the act was
unconstitutional on the ground that the legislature had encroached upon its judicial power to
regulate the practice of law and refused to admit Cooper to the bar. In re the Graduates, 10
Abb. Pr. 357 (Sup. Ct.) (Bonney, J.), rev'd sub nom. In re Cooper, 22 N.Y. 67 (1860). Cooper
was represented on appeal by Theodore Dwight. Dwight had reopened the Columbia School
of Law in 1858 and constituted its whole faculty at the time. 3 A. CHESTER, COURTS AND
LAWYERS OF NEW YORK; A HISTORY 1609-1925, at 1337 (1925). This appeal, too, was ex
parte; no advocate opposed Dwight. The New York Court of Appeals opinion relied heavily
on Dwight's self-interested brief and adopted much of it although it contained errors of fact,
history and law. See Kennedy, Has The New York Legislature The Paramount Right To Regu-
late The Admission of Attorneys? (pt. 1), 99 N.Y.L.J. 1 (April 6,1938). See generally Lee, The
Constitutional Power of the Courts Over Admission to The Bar, 13 HARV. L. REv. 233, 240
(1899). The ex parte nature of the appeal was later severely criticized by the New York
Supreme Court. Justice Sutherland characterized the New York Court of Appeals action as an


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