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The Difference Between Pro Bono and a Contingency Fee

For many people, getting legal services is a Catch-22. You need an attorney to help you navigate the situation you’re in, but because of that situation, you are not in a position to pay for a lawyer.

If you need a lawyer but can’t afford to pay one, two terms you might hear are “pro bono” and “contingency fee.” While these are both ways to get legal representation without paying out of pocket, they are different arrangements with different implications.

What is “pro bono” legal work?

Pro bono – more formally, pro bono publico, literally meaning “for the public good” – is a term for professional services, usually legal services, undertaken voluntarily without any expectation of payment. Usually, lawyers (as well as law students and paralegals) offer pro bono services directly to clients who are unable to afford a lawyer (indigent), or to organizations that work with that population.

The American Bar Association recommends that attorneys contribute at least 50 hours of pro bono work per year. Some state bar associations recommend more or fewer hours. In New York, law students are required to complete 50 hours of pro bono service to be admitted to the bar. In many states, pro bono service is one way for lawyers to earn continuing legal education (CLE) credits.

Attorneys can work pro bono in just about any area of law. Often, pro bono work is focused on helping marginalized communities and underserved populations, or on social causes such as welfare or domestic violence prevention.

Again, the key distinguishing factor in pro bono work is that the attorney does not expect to be paid for their work, regardless of the outcome.

What is a contingency fee?

contingency fee or contingent fee is an arrangement where the fee is only paid if there is a favorable result. In the context of legal practice, a contingency fee is a fee paid only if the attorney wins a lawsuit or procures a favorable settlement for the client. Usually, the fee is a percentage of the amount recovered for the client.

As such, contingency fees are only used in cases where money is being claimed: personal injury, medical malpractice, wrongful death, workers’ compensation, disability, and some employment law claims, for example. Most jurisdictions in the United States explicitly prohibit contingency fees in criminal cases and certain types of family law claims.

When you hire a lawyer on a contingency fee, you pay nothing up front. The law firm often advances the costs required to move the case forward up to the time of settlement or verdict, so there are no out-of-pocket expenses while the case is ongoing. If the attorney reaches a favorable settlement or wins a jury verdict on your behalf, the attorney’s fee is a percentage of the funds recovered – usually about one-third, but it can vary significantly depending on the type of case. In some types of cases, the contingency fee is set by law; for instance, in Social Security Disability matters, the attorney’s fee is 25 percent of past-due benefits or $6,000, whichever is less.

If you don’t win your case, you don’t owe your attorney a fee. However, the client in a contingency fee matter may still be responsible for other costs associated with moving the case forward, such as court filing fees.

Why attorneys represent injured people on contingency

Again, contingency fees are most common in personal injury, wrongful death, workers’ compensation, and disability law. There’s a practical reason for this: most clients who have an injury or disability matter are not in a position to pay an attorney up front. They may be unable to work and need the money from their personal injury claim just to make ends meet. Without contingency fees, legal protections for injured people would be effectively meaningless.

Hiring an attorney on a contingency fee basis also means your lawyer is directly invested in the outcome of your case. Rather than being able to bill by the hour, win or lose, the attorney must get a successful outcome in order to win. Lawyers who take cases on contingency have a direct financial incentive to go above and beyond to get positive results for their clients.

Furthermore, the contingency fee agreement forces attorneys to carefully screen the cases they accept. Since the lawyer only gets paid if the case is successful, there is no reason to accept frivolous cases. That doesn’t mean every case has to be a sure bet, but each case must at least have some merit in order to be winnable.

If you hire a lawyer on contingency, discuss the fee agreement in detail

Lawyers who work on contingency typically also offer a free consultation, which is in part an opportunity to discuss the contingency fee agreement. Some of the questions you may want to ask an attorney who works on contingency include:

  • How is the fee calculated?
  • What kinds of costs should I expect, and am I required to pay them?
  • Will I owe anything for costs if there is no recovery in my case?
  • If I decided to change law firms, what will I owe your firm?
  • Is there any legal work that isn’t covered by the fee?
  • What happens if my case is appealed?

When considering hiring an attorney on a contingency fee basis, it’s important to read over the agreement carefully, ask any questions you may have, and don’t sign until you understand and are comfortable with the terms. You should be able to take it home and read it at your leisure if you aren’t ready to sign during the free consultation.

Don’t let concerns about cost stop you from talking to an attorney

Again, most lawyers who work on contingency offer a free consultation, so there is no downside to talking with an attorney about your legal situation. Meeting with a lawyer isn’t an obligation to hire them or file a lawsuit; it’s an opportunity to be advised of your legal options and determine what the right solution will be for your legal needs.

The key is to act quickly. Time is of the essence in most cases that are accepted on contingency, and the sooner you know your options, the better. If you’re dealing with an injury or disability matter, talk to an experienced attorney in your area today.

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