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众所周知,律师与委托人之间存在潜在冲突。如果一位律师的收入只与他所付出的时间相关而与案件的结果无关,那么律师可能会希望将案件提起诉讼,即便是提起诉讼并不符合委托人的最佳利益,律师也可能会在该案件上耗费比委托人所期望的更多的工作时间,也可能在和解对于委托人更为有利的时候反对和解。反之,如果律师是根据传统的风险代理收费方式来获得报酬——根据这种收费方式,他只能获得判决所得或者和解所得的一部分,却必须承担所有的诉讼成本——那么,律师可能没有什么动力将案件提起诉讼,或即便提起诉讼的话也可能会花很少的时间在该案件上,也可能当提起诉讼对于委托人来说更为有利的时候却鼓励他们进行和解。在这篇论文中,我们提出一种支付律师报酬的方式,这种方式能够克服律师和委托人之间的利益冲突。我们的方式是传统风险代理收费方式的一种变体,但是相比于传统风险代理收费方式来说,我们将会使律师仅仅承担诉讼成本的一部分。同样,律师在判决所得或者和解所得中也只能获得一部分回报。我们证明,当律师所承担的成本份额等于他能够从判决中所得或者和解中所获得的回报份额,那么他就有动力完全按照一个有见地(knowledgeable)的委托人对他的期望来开展工作,比如在是否将案件提起诉讼、在案件上花费多少时间以及是否对案件进行和解等方面。根据我们的改良风险代理收费方式,第三方将偿付律师费用的一部分,作为回报,律师将事先支付给该第三方一笔费用。通过这种方式,即便案件败诉了,委托人也不用像传统风险代理收费方式那样承担任何费用。
As we all know, there is a potential conflict between lawyers and clients. If a solicitor’s income is only relevant to the time that he has paid and has nothing to do with the outcome of the case, the lawyer may wish to bring the case to court even though the solicitor may not be in the best interests of the solicitor, The case consumes more working time than the client expects, and may also object to reconciliation when the settlement is more favorable to the client. Conversely, if a lawyer is paid on the basis of a traditional risk-based charging method - according to which he can only get part of the proceeds of the sentence or settlement, he has to bear all the litigation costs - then the lawyer may not have anything Motivation to sue the case, or even litigation may take little time in the case, may also be litigated when the litigant may be more favorable to encourage them to reconciliation. In this paper, we propose a way of paying lawyers remuneration, which can overcome the conflict of interest between lawyers and clients. Our approach is a variation of the traditional risk agent billing approach, but compared to the traditional risk agent billing approach, we will allow lawyers to cover only part of the litigation costs. Similarly, lawyers receive only a portion of the rewards in the proceeds of the judgment or settlement. We prove that when the share of lawyer’s share of the cost is equal to the portion of the reward that he can obtain from the judgment or settlement, he has the incentive to work in full accordance with the expectation of a knowledgeable client, Such as whether or not to bring the case to court, how much time it has spent on the case, and whether to settle the case. According to our modified risk proxy billing method, a third party pays part of the legal fees in return for a lawyer’s payment to the third party in advance. In this way, even if the case loses, the principal does not have to bear any costs like the traditional risk agent charging method.