The 5 Rules of Alternative Fee Arrangements

Call it an alternative fee agreement (AFA) or a hybrid fee agreement (HFA).  Lawyers are looking for creative ways to appeal to clients who are resisting the traditional hourly rate approach.

In this classic reboot, we examine AFA and HFA options and how you can ethically deploy them in your firm.money-tree

Employment Law HFA

Consider the employment law case that is less than a slam dunk.  You could put in many hours only to see no fee. Ah, the life of a contingent fee practitioner.

Or is it?  One creative lawyer decided to offer his client a hybrid fee arrangement: a reduced hourly rate of $100 per hour with a 25% contingent kicker in the event of a recovery. (Lower than the “going” contingent rate of 33%.)  If the client agrees, and your fee agreement passes the test below, there is nothing wrong with such an arrangement.

Family Law HFA

Among family law practitioners – who are forbidden to take a contingent fee – a popular hybrid fee arrangement incorporates a flat fee earned upon receipt with an hourly rate that kicks in at a specific stage. The flat fee compensates the lawyer for work done in the early stages of a case: initial consultation; file opening; drafting and finalizing the Petition for Dissolution (or preparing a response); serving the opposing party; drafting and serving the first request for production of documents.  The flat fee could encompass additional services – each lawyer can determine where the cut-off should be – but charging a flat fee for time spent from the first consultation through initial discovery is predictable and easy to do.  Again, if the client agrees and your fee agreement passes the test below, this is a perfectly fine arrangement.

Does your HFA or AFA Pass the Test?

To create an ethical alternative fee arrangement, apply the rule of the 5 “C’s:”

  • Clarity
  • Completeness
  • Compliant
  • Common sense
  • Can’t be excessive

Clarity

If a fee agreement is ambiguous, it must be construed against the lawyer. Cf. OSB Formal Ethics Op No 2005-15.” Oregon State Bar (OSB) Formal Ethics Opinion No. 2005-124.

If you decide to experiment with your fee agreements, strive to be as clear as possible.  With the employment law scenario, the main challenge is the math.  Conceptually the idea is pretty clear.  With the family law scenario, the number one problem is failing to explain what the client is “buying” with the initial flat fee earned upon receipt.  Just how far does the $1,000 initial payment go and when does the $200 per hour rate kick in?

Completeness

Consider all possibilities.  A good example in the employment law context: if you have the right to recover attorneys fees, address this in your agreement.  See OSB Formal Ethics Opinion No. 2005-69  [Attorney fee awards are the property of the client unless “the terms of the fee agreement expressly provided that Lawyer was entitled to the greater of the fee computed thereunder or the court-awarded amount.”]

Fee agreements should address all conceivable outcomes.

Compliant

May I also suggest reviewing this excellent article: Helen Hierschbiel, “Alternative Pricing Models: What’s in a Fee?,” Oregon State Bar Bulletin (November 2011).  Practice Tip: flat fee earned upon receipt fee agreements must include special “disclosure” language set out in Oregon RPC 1.5.

Common Sense

Don’t torture yourself or the client trying to figure out the math of your hybrid fee agreement.  Once you’ve developed a sample, run it by your next door neighbor or another lay person.  Ideally, run it by several nonlawyer friends.  Does it make sense to them?  If not, go back to the drawing board.  Remember: “If a fee agreement is ambiguous, it must be construed against the lawyer. Cf. OSB Formal Ethics Op No 2005-15.” Oregon State Bar (OSB) Formal Ethics Opinion No. 2005-124.

Can’t be Excessive

“The Oregon State Bar Legal Ethics Committee has also said that split contingent/hourly fee agreements do not automatically violate the rules of professional conduct. See OSB Formal Ethics Opinion No. 2005-54. However, the committee cautions lawyers that a fee that appears to be lawful at the outset, may turn out to be clearly excessive in the end….” Helen Hierschbiel, “Alternative Pricing Models: What’s in a Fee?,” Oregon State Bar Bulletin (November 2011).

All fees are subject to a look-back at the end of the case. The employment law HFA is more likely to be challenged than the family law HFA.  In the employment law scenario, tabulate the total hourly fees charged to the client and your contingent fee share of the recovery.  Add the two together.  Do these exceed the standard contingent rate of one-third?  If they do, you may be on perilous ground. Helen’s article, Alternative Pricing Models: What’s in a Fee? discusses all the factors that go into gauging the reasonableness of a fee.

Parting Thoughts

Developing alternative fee agreements that are ethically compliant and legally enforceable can be done – don’t get discouraged.  Check out the ABA book: Alternative Fees for Business Lawyers and Their ClientsIf you are an Oregon lawyer but do not belong to the ABA, use the Professional Liability Fund discount code at checkout to save money: OSBPLF.

[All Rights Reserved 2016 Beverly Michaelis]

Postscript

Thanks for joining me during Finance Month.  March will begin with two posts on technology.

POP3 Mail Users Report Problems in Outlook After Office 2016 Update

Attention Outlook 2016 Users!  If you have having problems with mail, read the alert below from CompuSavvy.  If you previously used Adobe Acrobat XI to create email portfolios, also check out this post.

Some Outlook 2016 users who have POP3 mail accounts – including me – are reporting an issue involving multiple (i.e., repetitive) downloads of previously downloaded e-mail messages afte…

Source: POP3 Mail Users Report Problems in Outlook After Office 2016 Update

Tiplet: Deleting an extra page (Word)

From the incomparable Jan Berinstein, a Word power user and then some!  Thanks Jan!  

I just had this problem yesterday. I was revising a document where I had previously inserted a section break to separate a landscape orientation table from the rest of my text, which was in standard portrait orientation.  I deleted the table, but ended up with a blank page that wouldn’t go away. Every time I attempted to delete the unneeded section break, it reformatted my entire document. Argh!

Issues like this are why you should buy Jan’s new book: Formatting Legal Documents with Microsoft Word 2016, available on Amazon. Here is Jan’s post:

Over the past few years, my clients have frequently reported difficulty deleting an extra page that appears at the end of a document – typically a pleading.  Sometimes the problem involves a table (whether an actual columnar table containing data or a single-cell table used for a signature block) that falls at the end of […]
https://compusavvy.wordpress.com/2016/02/24/tiplet-deleting-an-extra-page-word/

How to Answer a Text without Unlocking your iPhone

From sharechair, one of my favorite tech blogs:

Thanks to my sweet daughter-in-law for bringing this tip to my attention. It’s a way to answer a text WITHOUT unlocking your phone. This could be very handy. In spite of fingerprint-recognition, I find myself tap tap tapping my lock code many times each day, usually just to answer a text message. This little hint […]
https://sharechair.wordpress.com/2016/02/23/how-to-answer-a-text-without-unlocking-your-iphone/