The Perils of Unsigned Fee Agreements and Engagement Letters

Does this scenario sound familiar?

On November 1 you meet with Jane Client.  You have a good feeling about Jane and her case.  She is definitely someone you want to represent.  After the meeting, you send Jane a standard fee agreement/engagement letter.  You tell Jane that you will need documents and additional information to proceed.  You also explain that Jane must establish a retainer of $2500 before you begin work on her case.  On November 3, Jane sends you an email with the required documents.  Four days later, she provides the additional information you requested.  On November 8 you and Jane speak over the phone. On November 10 Jane sends you a check for $2500.

Clients Like Jane are Tempting…

Jane is a very appealing client.  You have good rapport and confidence in her case. She is cooperative, responsive, and paid your retainer.  So what’s not to like?  If you proceed to represent Jane (or let’s be honest: if you continue representing Jane), you do so under substantial risk.  How can that be?  Let’s explore some of the issues that come to mind:

The Perils of Unsigned Fee Agreements and Engagement Letters

  • No enforceable written contract.  I wouldn’t want to be without one.  I’m not saying all hope is lost collection-wise, but you certainly have a far tougher row to hoe without the client’s signature on a written agreement.  Fee agreements should always be in writing, countersigned by the client, regardless of the practice area.
  • No proof of scope of representation.  This could lead to several problems: demands by the client that you provide additional, unintended services; liability exposure for unanticipated (but arguably related) services; or inability to withdraw as attorney of record before an agency or tribunal.
  • Voidable fees in contingent cases.  ORS 20.340(1)(a) provides that all contingent fee agreements “shall be written in plain and simple language reasonably believed to be understandable by the plaintiff.”  In addition, a model explanation of the contingent fee agreement is required.  ORS 20.340(1)(b).  “Any contingent fee agreement entered into on or after September 26, 1987, that does not comply with the requirements of subsection (1) of this section is voidable. [Formerly 9.400]”
  • Ethics complaints related to flat or fixed fees paid in advance.  Oregon RPC 1.15 and 1.5, together with Oregon Formal Opinion 2005-151, describe a specific set of conditions for “earned upon receipt fees,” the most basic of which is that such arrangements must be in writing.  No exceptions.

Fixing the Problem

Since Jane is otherwise an ideal client it should be easy to pick the phone and have a conversation about the necessity of signing and returning your fee agreement and engagement letter. It is possible she simply overlooked your paperwork.  You may also learn that your fee agreement or engagement letter is too long or too complicated.

  1. If you are asking the client to sign an “earned upon receipt” fee agreement after the fact, consult with private ethics counsel or contact OSB General Counsel before proceeding: “Without a clear written agreement between a lawyer and a client that fees paid in advance are earned on receipt, such funds must be considered client property and are, therefore, afforded the protections imposed by Oregon RPC 1.15-1. In re Biggs, 318 Or at 293 (discussing former DR 9-101). If there is a written agreement with the client that complies with the requirements of Oregon RPC 1.5(c)(3), the funds belong to the lawyer and may not be put in the lawyer’s client trust account. If no such agreement exists, the funds must be placed into the trust account and can only be withdrawn as earned. See, e.g., In re Hedges, 313 Or at 623–24; OSB Formal Ethics Op No 2005-149.” OSB Formal Opinion 2005-151.
  2. Going forward, streamline your engagement/fee agreement procedure.
    1. Give the client a heads-up about the importance of signing and returning your agreement/engagement letter during the client meeting.  Let the client know to expect the letter, what it will say, and why it must be signed before you can proceed.  Encourage clients to call with any questions or concerns.
    2. Consider presenting the fee agreement or engagement letter to the client as part of the client meeting [not my personal favorite, but it is an option] – or – experiment with eSigning.  Services like DocuSign are simple, easy, and secure.  Another option?  A click-wrap agreement.
    3. If you use surface mail, consider enclosing a stamped, self-addressed return envelope).  Be sure to include an extra copy of the agreement for the client’s records.
    4. Set a date to follow-up with the client about returning your agreement and enter the follow-up date in your calendaring system.  If the agreement is not returned by the date specified, contact the client.
    5. Solicit client feedback about other changes you can make to improve return of signed fee agreements and engagement letters.

Make it Easier for You and the Client

Clients want agreements that are short, simple, and understandable.  This presents a challenge because we are tempted to cover every contingency in great detail. Odds are your fee agreement has room for improvement when it comes to use of Plain English, and room to spare when it comes to verbosity.

Consider this option:  Instead of devoting a page of your fee agreement to the subject of billing, enclose a separate one page bullet list of “Billing Practices” describing when/where/how you bill. While technically a “cheat” (you just added another page), it will shorten the actual agreement while giving the client the information they need in a more understandable format.

Or if you prefer not to add another physical page, send the client a link to the billing practices section of your website.  (Which can be a stand-alone page not visible in your navigation menu.)

This concept – enclosing a bullet list or providing a link to content on your website – can be applied to other issues covered in a typical fee agreement/engagement letter. Using this approach should not jeopardize the viability of your contract or collection of accounts if you use language that incorporates the referenced practices as part of your agreement.  Be sure to use effective dates on any enclosures or web pages and retain links to archived firm policies or procedures. If you choose to transition content in this manner, do you own research on enforceability/viability.

Final Thoughts: Learn More!

Learn more about fee agreements at the upcoming CLE, “Fee Agreements – Ethical Dos and Don’ts,” on January 18, 2017.  Start the new year off right!

[All Rights Reserved 2016 Beverly Michaelis]

 

 

Improve Your Collection Rate Through Better Billing Practices

Billing clients for services is not practicing law and it does not take a ton of thought to create a procedure. However, it is important to design a system that works — and to continue to revise and improve it based on experience. If you have little or no procedures in place, here is a […]

via Billing: Developing a Winning Procedure — NWSidebar –

February is Finance Month

February 2016 is finance month at Oregon Law Practice Management.  We are going to revisit and update some “oldie but goodie” posts on law firm finances: money-tree

  • How to get paid
  • Bartering for legal services
  • Adding surcharges if the client fails to pay
  • The seven golden rules of collection
  • The five C’s of hybrid fee agreements

We start off tomorrow with Four Sure-Fire Ways to Get Paid in 2016.

See you on February 1!

[All Rights Reserved 2016 Beverly Michaelis]

 

Getting Paid and Maximizing Revenue

This is the third in a series of posts featuring tips and insight from Carolyn Elefant of MyShingle.com.  Carolyn was the featured speaker at our November Solo by Choice CLE.  The overflow audience came away with some great advice. including how to get paid and how to maximize revenue:

Seven Tips for Getting Paid Now

  • Make payment easy by accepting credit cards.  (But read my blog post first.)
  • Use “evergreen” retainers requiring the client to replenish the trust account.
  • Keep rates affordable.  Don’t price yourself out of the market, but don’t charge too little either or you won’t be in business long.  Know your client’s budget and research fees through sources like AVVO  and PACER.  Use tools like Freelance Switch’s hourly rate calculator to gauge your costs in relation to your fees.  (My two cents:  the best source for data on hourly rates charged by Oregon lawyers are the Oregon State Bar Economic Surveys.)
  • Offer flat fees whenever possible.  Flat fees give clients the ability to plan and set funds aside.  (See my blog post.) 
  • Leverage efficiencies to make flat fees work. 
  • Value bill for your time when you have a rush job or complicated issue.
  • Always research alternate sources for paying your fees.  Does the case or claim qualify for a statutory or contractual fee award?  Will the client’s insurer pay?

Increasing Your Revenue Stream

  • Unbundle.  Sell a piece of your service.  Educate yourself on ethical constraints  and potential malpractice issues first.
  • Consider offering “toll bridge” agreements.  For a flat fee, the client receives ongoing “legal checkups.”
  • Turn your knowledge into a product you can repurpose and sell, including eBooks, training packets, and Webinars.
  • Earn quick cash by working on law-related activities, doing contract work, court-appointed work, or teaching.  As a part-time adjunct professor you can build new contacts.  You may also get access to resources you would otherwise not be able to afford.

Carolyn’s presentation is available now on the PLF Web site for $30.  Select Programs on Audio or Programs on Video.  When you order the program, you will receive a copy of Carolyn’s book, Solo by Choice, along with her slides and CD/DVD.  A nice stocking stuffer perhaps?