February 27, 2018
A recent CEBblog article by Julie Brooks, “2 Key Provisions for Your Fee Agreement,” writes about two keep provisions in fee agreement. This article was posted with permission. The article reads:
In "The Contract that Binds: Your Fee Agreement", we noted that fee agreements should not be governed by simple boilerplate and formulaic thinking. This is true, but there are exceptions to this general advice: Here are two particular provisions that should be considered and likely added to every fee agreement you draft.
When you’re part of a law firm, your fee agreement should make clear that it’s the firm being retained, not you. Even if you’re likely to perform most or all of the work, this provision will support the firm’s continuing representation of the client and the transferring of responsibilities to another attorney if you die, become disabled, leave the firm, or are otherwise unavailable to handle all or some part of a client matter. Of course, the client will retain the absolute power to discharge the firm at any time, with or without cause.
Here is sample language you might use for this provision (when applicable, the bracketed language at the end may clarify the situation and assure the client):
RETENTION OF FIRM RATHER THAN PARTICULAR ATTORNEY. You are retaining the _ _[name of law firm]_ _, not any particular attorney, and the attorney services to be provided will not necessarily be performed by any particular attorney. _ _[It is anticipated, however, that the services will be performed principally by _ _[insert name(s) of attorney(s)]_ _.]_ _
If you’re being retained as counsel but may delegate performance of some of the services to other attorneys and legal professionals, you need to make that clear to the client at the outset. See California State Bar Formal Opinion No. 2004-165 (if attorney anticipates delegating services to outside contract attorneys, issue should be addressed in fee agreement). Under Cal Rules of Prof Cond 2-200, the client must specifically consent in writing to an attorney’s sharing part of a fee with another attorney who isn’t a partner or associate in the same law firm. An attorney who is “of counsel” to the firm is not considered a partner or associate (i.e., an employee) in the law firm. See California State Bar Formal Opinion No. 1994-138.
Here is sample language you might use for this provision:
DELEGATION OF ATTORNEY AND PARALEGAL SERVICES. You agree that we may delegate to other attorneys and legal professionals, such as contract attorneys and contract paralegals, some of the attorney services to be provided to you. Such services will be billed to you at the same hourly rates that we bill our services, and any such delegation will not affect your obligation to pay attorney fees as provided for in this agreement.