December 2013 Bar Bulletin
Using Smart Mechanics
I recommend what I call "smart mechanics" when using written fee agreements. This involves tying your client in a provable manner to his or her understanding of all of the fee agreement's terms.
I now have my clients initial every page. That takes away the argument the client did not really read or look at that page, or one clever client's 11th-hour contention that his copy of page 4 of the fee agreement (containing the provision the client desires to avoid) was missing in the executed copy he received from the lawyer.
I also like to include a series of acknowledgments that ties the client to the specific terms in the agreement and my own discussion of those terms. Here is what I use in my hourly engagement letters, directly above the client's signature block:
1. I agree to the terms and conditions of this engagement as set forth above.
2. I acknowledge that I have received full disclosure of all material terms and conditions as set forth above.
3. I acknowledge that Attorney has fully answered any question that I raised before signing and that he has made a reasonable effort to explain all of the terms and conditions set forth above.
4. Attorney has advised me of my right to consult independent counsel, at my own expense, before entering into the agreement.
5. Attorney has given me no oral estimates of the probable cost of this engagement in terms of attorney's fees and expenses incurred.
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