If you are working to establish a paperless or virtual practice, you may have struggled with the issue of how to transform your paper-based fee agreements.  Oregon Rule of Professional Conduct 1.5(c) provides, in part:

A lawyer shall not enter into an arrangement for, charge or collect:

* * * (3) a fee denominated as “earned on receipt,” “non-refundable” or in similar terms unless it is pursuant to a written agreement signed by the client …   OSB Formal Opinion 2005-151 [Revised 2011].

There is no doubt that a printed fee agreement signed by the client fits the definition of a “written agreement signed by the client.”  But what if you and the client arrange to sign the fee agreement electronically using DocuSign or a similar service?  Or perhaps you’ve set up a virtual law practice and intend to use clickwrap or click-through fee agreements.  Is a click-through fee agreement a “written agreement signed by the client?”

To answer this question, take a look at Rule 1.0(q) of the Oregon Rules of Professional Conduct (RPCs):

(q) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostatting, photography, audio or videorecording and e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

The rule tells us that:

• Written fee agreements can be tangible (paper) or electronic
• Signatures include a “process attached to or logically associated with a writing and … adopted by a person with the intent to sign the writing.”

Therefore, a clickwrap or click-through fee agreement is “a written agreement signed by the client” provided the click-through process is adopted by client with the intent to sign the fee agreement.  To ensure that your clickwrap or click-through fee agreements are ethically compliant, incorporate a step requiring the client to agree or consent to the click-through process.  I also suggest you discuss the click-through process with your client over the phone if possible – give them a heads-up so they know what to expect.  More importantly, make sure they understand they that the click-through agreement is a legally binding contract with the same enforceability of a printed fee agreement signed in ink.

Copyright 2013 Beverly Michaelis