Q: What percent can a lawyer charge on a wrongful termination case?

A: Most reputable attorneys who handle wrongful termination cases on a contingency fee basis charge anywhere from 1/3 of the gross recovery, plus their costs incurred in proving up the case. Depending on the complexity of the case and the issues involved, many attorneys may have a sliding scale of fees which depends on what stage the case is in when it settles. As an example, I used to charge 1/3 if the case was settled prior to any arbitration hearing or mediation, and 40% of the gross recovery if the case went to trial or settled after any court ordered arbitration or mediation session. This is to account for the degree of risk involved and the additional time and energy spent in taking the case to trial. Then you can also expect to repay all the costs the attorney has incurred in proving up the case, such as court costs, jury and court reporter fees, fees for expert witnesses, process servers who are necessary to serve the trial subpoenas on witnesses for trial, the costs to prepare exhibits for trial and any other miscellaneous costs which might be incurred in proving up the case.

The law requires that any contingent fee be "reasonable" depending on the issues in the case, its complexity, whether it is difficult to find an attorney to handle it, and similar considerations. What the law will not tolerate is any fee which shocks the conscious of a reasonable attorney in similar circumstances. Any contingency fee which approaches or exceeds 50% of the gross recovery may be found to be unconscionable. Most reputable lawyers will not charge fees even approaching 50% unless it is an unusual case or exceedingly difficult to prove.

A: Contingent fee contracts are not set by law, and as Mr. Fazzi indicated the percentage charged is usually determined by the difficulty of prevailing on the case versus the potential amount of recovery, and the ability to get the money from the defendant. An experienced attorney will be able to estimate the difficulty based on experience. The potential recovery is usually based on loss of earnings, and any recoverable medical expenses, as a start. Attorney's cannot work on a case for 30% of an hourly employee's earnings, unless the loss of income covers a substantial period of time. If you were a minimum wage employee, you are asking an attorney to work for $3.30 per hour, that won't work. Many employment cases carry potential recovery of attorney's fees as a part of the remedy, but this requires winning at trial and convincing the judge to award the full amount of attorney's fees. Many judges don't like or respect the employment case and show this by cutting the attorney's fee. If you feel the rate is exorbitant, ask the attorney what his hourly rate is and how many hours he expects to spend on the case, then do the math. Contingent fee cases must also compensate the attorney for the risk of loss, there is not a 100% chance of recovering enough to cover all attorney's fees. Many contracts offer a choice whether to apply the percentage to all amounts received or whether to take only what the Court awards as attorney's fees, in that situation, you already have a Judge determining what the reasonable value of the attorney's services are. You also need to understand that most employment cases are a "bloodbath." Defendants fight to the death to keep employees from receiving full compensation, and drag the case on for years, while the attorney is not getting paid. I agree that exorbitant fees are prohibited but I disagree that any percentage, 50% or otherwise, is a bright line to determine that, there are too many factors.

Thanks for asking the question.

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