December 2013 Bar Bulletin
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December 2013 Bar Bulletin

Lessons In Private Practice: Crafting a Fee Agreement To Cover All the Bases

By Mike Caryl


[This is the second installment of an article begun last month on fee agreement and billing practices basics. The first installment addressed best practices in full disclosure of fees and billing practices at intake. This second installment addresses how best to approach drafting and presenting written fee agreements to the client.]

As was emphasized in the first installment of this article, lawyers should always draft their own fee agreements. There is nothing wrong with using a form fee agreement in frequently performed client engagements, such as handling a contingency fee, personal injury case, an hourly- or flat-fee agreement for criminal defense work, or an hourly-fee agreement for civil litigation.

But the lawyer must determine what is important to put into that form agreement and give real thought to the language to be used. Such a form can be used repeatedly with minor modifications such as those relating to the scope of the engagement, the size of the required advance and the hourly rates to be charged. Using someone else's dusty old form with uncertain provenance is very unwise.

What Should Go into the Written Fee Agreement

The following is a non-exclusive list of what should be orally discussed in any intake interview:

The specific fee arrangements:

  • Contingency fee cases: the precise percentages, when each comes into play and to what each percentage attaches.
  • Flat fee: what the flat fee will be and precisely what must be done for it to be earned.1
  • Hourly fees: Each rate to be charged for each potential timekeeper should be identified and a notice provision for when hourly rates are to be raised should be included.

  • ...login to read the rest of this article.

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