Suppose you have a problem and need to hire an attorney to help you get the best resolution. You get recommendations from friends or go online to find a suitable attorney. You meet with that attorney, and at the end of that meeting, you decide to hire her to take care of the matter for you. She describes briefly what she will need to do and explains her fee to you. You agree with what they’re telling you. Do the two of you need to put that agreement into writing?
Regardless of what kind of matter you have, it is always best to have the attorney prepare a written contract. Actually, a good attorney should have one ready for you to review either before her representation starts or within a short time thereafter. It may be referred to as a fee agreement, a retainer agreement, or a representation agreement, and it may be very simple or many pages long. However, what matters is that the agreement clearly explains certain key issues of the work arrangement you absolutely should be provided a copy of the contract once both you and the attorney have signed it.
Putting the attorney-client relationship into writing requires you and your lawyer to be clear about the work that will be done and the fee to be paid for that work. Without a written agreement between you, it is all too common for you and your lawyer to have a slightly different understanding of what is being agreed to. The written agreement is a contract between the two of you. If you have a question later about the work done or the fee expected, you can look back at the contract rather than arguing over who said what. Most disputes between clients and their attorneys are over money — specifically, how much money the client owes the attorney. You will certainly want to have a written record of what you agreed to pay the attorney in case you later have a dispute about her fee bills.
What Should the Attorney/Client Agreement Include?
- Probably the most important part of the written agreement is the explanation of how the attorney will charge her fee and how it will be paid. Attorneys generally have three different ways they can charge fees:
- Hourly fee. This is the most common form of attorney compensation. Generally, the amount that the attorney charges per hour is based upon the going rate in the location where the attorney practices, as well as her level of expertise in the area of law in which she will be representing you. She will likely require you to pay a retainer and then will bill against it at her hourly rate until it is used up. After that, she will bill you directly. She should be keeping a detailed list, by date, of the time she spends working on your case, which is usually figured in either quarter hours or tenths of an hour, with specific descriptions of the work done at each entry. At any time during her representation, she should be able to get you an updated copy of her time list. At the least, a copy of the list should be provided automatically with each and every billing statement she sends you.
- Set fee. These are usually reserved for matters where the attorney’s duties are fairly limited in scope, such as fees for the preparation of wills, deeds, and powers of attorney. Set fees are also common in bankruptcy cases, where they generally include the attorney getting the necessary information and documents; preparing the schedules and other court pleadings; meeting with you to review and sign the schedules; filing with the court, and attending the actual court proceedings with you. Many attorneys also charge set fees for traffic violations and minor criminal matters. Again, these set fees work best where the attorney’s duties fall within a relatively set pattern so she can fairly predict the amount of time she will be spending on your case.
- Contingent fee. These fees are common in personal injury cases. The attorney waits until the case is over and then takes a percentage of the amount that the client receives. This works well when the client has definitely been wronged but can’t afford to pay a lawyer until she herself has been paid for her loss. A contingent fee agreement must indicate the exact percentage that the attorney will take and whether that percentage will change if the case has to go to trial or to appeal. Under this kind of fee agreement, the lawyer is encouraged to work hard — if he hits the jackpot for his client, then his fee will climb proportionately. If the client gets nothing, then he gets no fee.
- The agreement should also spell out how certain expenses will be covered. In a personal injury case, the medical providers charge a fee for copies of records and reports that they provide the attorney. If the case goes to trial, there will be court costs, expert witness fees, copying costs, etc. Your agreement should spell out which of these costs you’ll have to pay and when you’ll be expected to pay them. In contingency cases, most attorneys will front the money for costs and reimburse themselves when the case is resolved; however, a client who does not win will have to figure out some way to pay the attorney back for these expenses.
- The agreement should clearly define the scope of the representation. If the attorney will not be representing you in all aspects of your legal proceedings, she should make that clear to you. For example, she may not be licensed to practice before out-of-state courts or may not handle appeals.
- The agreement should clearly define exactly who in the firm will be doing your work. If there are other attorneys in the firm, and if the attorney you have selected will not be the “lead counsel” or will not be appearing at court hearings with you, then that should be specifically addressed in the agreement, and the other attorneys who will be assisting in your case identified.
- The fee agreement should spell out your responsibilities as well. In a bankruptcy case, the fee agreement should set out that you are responsible for providing the attorney with the necessary information and documentation necessary for her to prepare your paperwork. In a personal injury case, your agreement should require your duty to fully disclose all pertinent information as to your present and past medical history and all facts surrounding the accident to the attorney. Your failure to fully comply with your duties under the contract could possibly be grounds for the attorney to end her representation in your case.
- Some agreements provide specifically for how either party can terminate the attorney/client relationship. It should go on to specify how fees will be calculated in the event of that termination.
- The fee agreement should spell out how long the attorney will retain the file after your case has ended. Most attorneys keep their client files for a minimum of five years after closing them; however, that does vary by office. If there are documents you would like returned to you, it is always best to request them as soon as possible after the case is concluded. If, for some reason, you fail to do so, you cannot expect that the attorney will keep them in storage forever. The wisest course in the fee agreement is for the attorney to provide that the file will be kept for a certain number of years unless the client instructs her otherwise. If you want the file to be kept in storage indefinitely, you should make sure that the instruction is written into the contract.
If you have more questions about finding the attorney that is the right fit for you, contact our experienced team at Horwitz & Horwitz today.