ATTORNEY-CLIENT RELATIONSHIP E. CLIENT LIABILITY: FEES1. THE FEE AGREEMENT AND THE AMOUNT

Preliminary Questions Hypo:

C comes to your office with a boundary dispute with his neighbor. You agree orally to represent him. You both then sign a written retainer agreement that says only “C will be billed monthly for fees and expenses”. After the first month you send C a bill for services to date.

Do you have a claim for a fee? 1.5(b) If so, how will it be measured? 1.5(a) If you disagree on amount, who decides?

Fee Agreement and Amount c’t’d Hypo: after lawyer and client orally

agree to representation, lawyer begins substantial work on the matter, then presents client with a written agreement on fees, specifying in detail what fees are to be changed and how they are to be calculated. Client signs. Is this agreement enforceable? N. 5 p. 166

Does it meet the requirements of 1.5(b)? If not, what is the consequence?

general law of fiduciary relationships: rebuttable presumption of undue influence!

Double burden of proof on lawyer!

Problem p. 158 After discharge, lawyer bills executor

of estate under their K, calling for two fee categories “customary legal services” to client as

executor: 2.5% of value of estate ($24,00) “additional legal services” to client as

defendant in will contest and constructive trust suit: $100/hr x 1020 hrs ($102,000)

Is this total of $126,000 “reasonable”? Are parts of it “reasonable”? who bears the burden of proof? what more do we want to know before

answering?

Problem p. 158 c’t’d

3 specified practices in determining fees: which if any is impermissible? What is the standard? F.O. 93-379, p. 161 rounding time up to nearest 15

minutes flat charge per phone call surcharge for each litigation file, to

cover (i) costs of doing computer research and (ii) costs of photocopying

Problem p. 158-60 c’t’d

Travel for one client, work for another – FO 93-379, p. 161 can you bill the time to both? if not, why not? doesn’t that

present a perverse incentive? 3-hour flight, one hour of

work for each, bill 3d hour to client for whom you travel?

Problem pp. 158-60 c’t’d Federal civil rights suit, federal fee-

shifting statute awards winner attorneys’ fees – nn. 10, 11 pp. 167-8 What is the “American rule”? Does it

make sense? Suppose Delores and Walters agree on

a fee of $200/hr for his services in this suit. Will that control the fee to be taxed to the defendant?

If not, how will it be measured? If the award is less than the agreed

fee, can Walters still get the difference from Delores?

Types of Legal Fees “Retainer fees” – can a lawyer charge

a minimum fee just for taking the case? How would its “reasonableness” be measured?

What are the problems with “billable hours”? ABA report, p. 169

Alternative approaches flat rate – how to fix it?

menu of services fixed amount per time period, with additions

Discounting – how to do this? Contingent fees