Ethical Considerations in §1983 Practice: Retainer Structuring and Client Counseling

Plaintiffs in §1983 civil rights actions against state and municipal actors are often persons who have been profoundly traumatized by agents of the government, and as such present unique counseling challenges for litigators who would seek to zealously represent their interests. Compounding these challenges, 42 USC §1988 provides for fee-shifting in the discretion of the Court for prevailing parties in §1983 actions. While this "private attorney general" fee-shifting statute enables attorneys to represent otherwise indigent civil rights plaintiffs in meritorious cases, it also presents significant ethical issues for retainer structuring in §1983 matters.

In this course, we discuss the ethical considerations and practical skills that are necessary for attorneys to provide effective counseling to §1983 Plaintiffs in the course of retention and various case decisions in the lifespan of §1983 matters. We review carefully prepared retainer provisions that will permit attorneys to seek fees on behalf of their clients if circumstances allow, while providing for a contingent fee recovery if an award of fees is unavailable or undesirable to the client.  

This course, presented by Samuel B. Cohen, noted New York §1983 practitioner, provides practitioners with important ethical guidelines for client counseling, tested sample retainer provisions for review and adaptation, and a guide to some of the common ethical pitfalls of §1983 practice.

Learning Objectives: 

1. Identify overarching ethical considerations in §1983 client counseling
2. Obtain an overview of retainer structuring in mixed fee-shifting/contingent matters
3. Gain skills for managing client expectations in litigation
4. Explore policy considerations in §1983 client counseling