A much more pervasive scheme for overseeing the reasonableness of fees charged by legal professionals exists in England than in the United States. In England, for example, with or without a specific agreement over the fee, the client can challenge the solicitor's charges, and the court or the Law Society will assess their reasonableness.' Similarly, as part of assigning costs to the losing party, the reasonableness of the winning solicitor's claim for fees is evaluated. The lay client can even dispute the reasonableness of the barrister's fee after the fact.
In the United States, by contrast, lawyers hammer out agreements with private clients, in civil or criminal matters, that, except in contingency fee arrangements or with exploitative arrangements, are policed only by the lawyer's risk that the client will change lawyers, lured by a more congenial fee. And with no legal aid in civil matters in America, private lawyers representing indigent criminal defendants are paid a set amount by hour, by act, or by case, almost never with any prospect of enhancement in light of the case's difficulty, and without much likelihood of review after the representation has ended to assess the reasonableness of the total fee sought.
Generally today in England, and before 1997 in the bulk of legallyaided criminal cases, the defending barrister's and solicitor's fees were fixed, as is universally true with lawyers' remuneration in parallel settings in the United States. In the most serious criminal cases underwritten by legal aid, however, until 1997 the defending barrister's and solicitor's fees were both calculated after each's representation had ended. The process of making those ex post facto calculations is the subject of this article.
There is good reason to examine this now-eclipsed method of paying legal professionals. As apparently the first attempt (or at least publicized attempt) to describe and evaluate the process of ex post determination of legal professionals' fees, this study suggests the need to expand the inquiry, to examine ex post determinations in civil matters as well. An assumption of any scheme that has third parties test the reasonableness of a legal professional's claim for compensation is that the results are consistent and predictable within an acceptable range of deviation. Moreover, the legal professionals must be satisfied that the distinctions which lead one Queen's Counsel, say, to be paid less than another are justifiable. If these criteria are not met, it is possible that solicitors and barristers will refuse to represent certain sorts of lay clients4 or will be reluctant to perform some aspect of representation that they would otherwise undertake if not worried about being denied appropriate recompense.
Section II introduces the current and discarded systems of compensating defending advocates in legally-aided, criminal cases. Section III describes and evaluates the results of the examination of 63 files taxed or being taxed at the Old Bailey (the Central Criminal Court) in London. Section IV summarizes the results of the study.
28 Anglo Am. L. Rev. 415-446 (1999)
Scholarly Commons Citation
Tague, Peter W., "Ex Post Facto Payments in Legally-aided Criminal Cases in the Old Bailey" (1999). Georgetown Law Faculty Publications and Other Works. 700.