Get Your Fee Agreements!

The Fifth Edition of the OSB publicationFee Agreement Compendium, is now available on BarBooks.

Topics include

  • Ethics Issues Arising in Fee Agreements
  • Billing Costs
  • Truth in Lending Act and Attorney Fee Agreements
  • OSB Fee Dispute Resolution Program
  • Drafting Tips for Fee Agreements
  • Retained or Not Retained–You May Need to Prove It
  • IOLTA in Relation to Fee Agreements
  • And 14 sample forms, including 9 addressing specific practice areas

Get answers to your frequently asked questions

Credit cards and installment payments

  • Does the Truth-in-Lending-Act prohibit me from passing on credit card surcharges to clients? §3.9
  • What are the implications of taking installment payments from clients?  §3.4

Client costs

  • Should I “bundle” or “unbundle” client costs? §2.3
  • What are the tax consequences of advancing costs for a client? §2.5-2
  • Am I personally liable for costs if the client doesn’t pay? §2.7

Drafting Tips

  • What are the 10 best tips for drafting fee agreements? §5.2
  • What are the perils of an ambiguous fee agreement? §5.1-3

Fee Disputes

  • Should I, or shouldn’t I, use OSB Fee Dispute Resolution?  §4.1-1 through 4.1-3.

Referral fees, splitting fees, and limited scope representation

  • What are the rules on referral fees? Splitting Fees? §1.1-7, §12.1 through 12.2-4.
  • How should I craft a limited scope representation agreement? §10.1 through 10.2.

(See the cited sections for answers.)

The Fee Agreement Compendium has always been a treasure trove of resources and tips.  Download the PDF from BarBooks today.

All Rights Reserved – 2018 – Beverly Michaelis

 

Nonlawyer Ownership of Law Firms

A financial planner, a CPA, and a lawyer walk into a bar … to form a law firm. A joke, right? Two years from now, some version of this could be happening for real in California.

A state task force headed by a former law professor is expected to produce proposals in 2019. Presently, Rule of Professional Conduct 5.4 prohibits nonlawyers from acting as partners, corporate officers, or directors of a law firm. The same rule strictly regulates fee sharing and forbids nonlawyers from directing or controlling a lawyer’s professional judgment.

Why consider nonlawyer ownership?

Some view nonlawyer ownership as a means of boosting productivity, reducing costs, and improving access to justice. Others herald the benefits of outside investment and potential for greater innovation in the corporate legal market.

What we can expect from California

Your opinion may differ, but I believe the State Bar of California is ready to make this change. The purpose of the Task Force is to work out the issues.  I predict:

  • California will be the first state to allow nonlawyer ownership of a law firm.
  • Nonlawyer owners will be prohibited from controlling or directing the professional judgment of a lawyer in the course of providing professional services to a client.
  • Nonlawyer owners will be allowed to control or direct business affairs of the firm.
  • Fee sharing will be authorized, provided: (a) clients give informed consent in writing; and (b) the sharing of legal fees does not affect the lawyer’s professional judgment.
  • Receiving referral fees from nonlawyers will be permissible.
  • Disclaimers or disclosures may be required in firm advertising, marketing, engagement agreements, websites, etc.
  • Lawyers will be permitted to reveal confidential client information to nonlawyer owners and their staff in order to carry out representation.
  • Conflict of interest rules will expand to include nonlawyers as “members” of the firm – a conflict for one is a conflict for all.

Operational concerns

Anyone pondering formation of a future lawyer/nonlawyer union should think long and hard about all the issues involved in business formation. A business plan, mission statement, and written ownership agreement will be an absolute must. Thorough insurance coverage, including professional liability, will be a necessity.  Prepare to integrate office systems, record retention, and nonlawyer staff. This includes training!  If nonlawyer partners are beholden to regulatory agencies, know the ins and outs for your sake, but don’t fall into the trap of advising nonlawyer owners. Lastly, have a plan for departure. When a law partner leaves you high and dry, the repercussions aren’t pretty. But at least you can temporarily cover your partner’s legal cases. This isn’t likely to be true with a nonlawyer partner who has an area of expertise (and perhaps licensure) that you lack.

All Rights Reserved – Beverly Michaelis – 2018

When Opposing Counsel Doesn’t Respond

Quote

A recent post in NW Sidebar posed this interesting question.

While it is rare for opposing counsel to go MIA, it does happen. What steps should you take? Can you contact the adverse party directly?

Cut and dried rule

Oregon RPC 4.2 and Washington RPC 4.2 make no bones on this point. Direct contact with an adverse party is not permitted if you know the party is represented.  Exceptions are made in the case of consent, court order, if “authorized by law,” or when a notice must be sent directly to a party pursuant to a written agreement.

What to do

Post author Sandra Schilling makes some excellent recommendations:

  • Remember that non-communication from opposing counsel may be a deliberate strategy or delaying tactic. While lawyers have ethical duties of communication and due diligence toward clients, there is no specific rule requiring lawyers to respond to one another.
  • Make repeated efforts at contact. Warn opposing counsel of the consequence of continued nonresponse (you will contact the adverse party directly). Document your efforts.
  • Wait a reasonable amount of time.
  • Seek a court order if possible.
  • Otherwise, consider if the circumstances have abrogated your initial knowledge of representation. As Schilling points out, to “know” is to have “actual knowledge” under the rules. Your “actual knowledge” may be inferred from the changed circumstances (repeated attempts to contact, warnings to opposing counsel, and counsel’s nonresponse).
  • If you make direct contact with the adverse party, make sure you tell them to refer the communication to their attorney if they are still represented, and ask for documentation of termination if they say they aren’t.

I would add: at any point along the way feel free to use the Oregon Ethics Hotline: 
1-503-431-6475 or 1-800-452-8260.

All Rights Reserved 2018 Beverly Michaelis