Attorney-Client Free Agreements that Offend Public Policy

Alex Long, University of Tennessee College of Law

Abstract

Under traditional contract law principles, an agreement may be deemed unenforceable because it so clearly offends established public policy that recovery under the contract is inappropriate. In such cases, there has traditionally been a presumption against permitting the offending party to recover, either under the contract or in quantum meruit. Yet, the legal profession (through the Restatement of the Law Governing Lawyers) and the courts (through their decisions) have effectively reversed that presumption and have announced a general rule in favor of permitting lawyers to recover fees even when their fee agreements clearly offend well-established and strong public policy. Moreover, although the majority of courts can be expected to hold that a fee agreement that fails to comply with an ethical rule is void as against public policy, a significant minority have demonstrated a reluctance to do so in certain situations. This Article examines whether this special rule for lawyers is justified.