Seven Commandments for Drafting Ethical Attorney’s Fee Agreements in Family Law Cases

Clarity and attention to detail are critical in drafting ethical attorney’s fee agreements so that the client is aware of all rights and responsibilities.

By Evan Marks & Carolyn West, Family Lawyers
Keeping your fee agreement ethical begins before you take the client. Under current law, technically, the old rules of hourly rate multiplied by the number of hours reasonably expended still apply. But especially in family law cases, appellate courts are scrutinizing the size of the fee in relation to the size of the issues involved, and the trend of calling out and criticizing lawyers in family cases suggests that we might have to start rethinking the way in which we calculate our fees. Some lawyers do not like to contemplate this. But if there are alternatives that would ensure that we get paid and satisfy our client’s needs, it seems like we should at least be having the conversation. With that in mind, here are our “Seven Commandments” for writing an ethical fee agreement in a family law matter.

1. Do Not Take a Case in Which You Will Not be Able to Justify Your Fee

It is unethical to accept a case wherein the magnitude of the matter, the complexity of the issues or the specific needs of the potential client do not require the expertise of a lawyer charging your hourly rate. Rule 4-1.5 (a) prohibits a lawyer from charging a “clearly excessive” fee[1], and sets forth detailed standards for determining what is “clearly excessive.” As lawyers who practice family law know, this is not an easy calculation, but is one that we must be aware of. Under 4-1.5(d) a contract to pay a fee that is “clearly excessive” is not enforceable.

2. Fee Agreements Are Not Set in Stone

The corollary to the preceding rule is that in most family cases, where attorney’s fees are based upon an hourly rate times hours expended, the determination of a reasonable fee is dynamic, not static. Having gotten yourself into a case wherein the magnitude of the fee is starting to look “clearly excessive,” by the standards set forth in Rule 4-1.5(a), you should consider ways to modify the fee agreement so that both you and your client can live with it. The comment to the Rule states that “[a] lawyer should, where appropriate, discuss alternative billing methods with a client. When developments occur during the representation that renders an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. In practice, not many family lawyers provide estimates because of the difficulty of making an accurate one. And it is true that hours reasonably expended will vary dramatically with the personalities and behavior of the parties, whether discovery is efficiently made, and whether the parties are able to settle or trial is required. If you give no estimate, you have no ethical duty to update it. However, you should monitor whether, in your mind, the size of the fee has become clearly excessive, and be prepared to make changes should that occur.

3. Put Your Fee Agreement in Writing

It is unethical to fail to communicate clearly with your client about how your fee will be determined, and the best way to ensure that you have communicated clearly is to put it in writing. While technically, Rule 4-1.5(e) says that fee agreements should “preferably” be in writing, there is no good reason to have an oral fee agreement in a family law case. On the rare occasion when the formalities of a written agreement are not possible prior to commencing representation, any oral agreement should be reduced to writing as soon as possible. A non-refundable retainer, sometimes called a “minimum fee” MUST be in writing.

4. Have Your Client Sign the Fee Agreement

The comment to Rule 4-1.5(e) notes that it is not necessary to have the fee agreement signed by the client. In keeping with the discussion above, even if our ethical rules do not require it, prudence and good judgment say, ‘do it anyway.” There is no better way to document that your client has read the agreement, than to have him sign acknowledging that he has done so. And there is no “down” side. If nothing else, it conveys to the client the seriousness of the obligation.

5. Contingency Fees Are (mostly) Not Permitted in Family Law Matters

Rule 4-1.5(e)(3) provides: “A lawyer shall not enter into an arrangement for, charge or collect: (A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof . . . .” The “mostly” referenced above derives from the comment to the Rule, which states that contingency fees are permitted to collect “post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.” Query: what, if any other matters that you handle in your “family law” practice similarly do not implicate the same policy concerns as taking a percentage of a post-judgment support or equitable distribution award?

6. Client Confidentiality is Complicated in the Computer Age

Rule 4-1.6(a) limits a lawyer’s ability to “reveal” information relating to representation without a client’s informed consent, except in limited circumstances. That used to mean no discussion of files with anyone outside the office, no files lying open in shared office space, and no gossip about clients around the community water cooler. But what does it mean to “reveal” information in the era of e-mail, digital record-keeping, and cloud computing? We know that most of these technologies have passwords, encryption and other systems to maintain as much confidentiality as possible. But given the limits of those systems, is our client information as secure as the Ethical Rules require? The answer is, probably not. And that leads to the need for certain practices to be the subject of informed consent in the fee agreement. Depending upon the systems in place in your office, consider whether the following terms should be expressed in your fee agreement:

• Explicit client consent to receive and respond to communications from your office via a private, secure (ie not accessible to the spouse) email address and confirmation of the exact email address to which you are authorized to communicate. If certain types of communication (ie bills) are requested through the mail or in paper form, that fact should be explicitly set forth. Communication with your client through his or her work e-mail address, which may be the property of the employer, should be discouraged unless your client is self-employed and therefore is the employer.

• Explicit client consent to the destruction of paper originals as part of a paperless or paper-less practice in which you scan and destroy some documents that come into your office in paper form. One option is to disclose that you only maintain digital files and offer to mail the originals to the client.

• Explicit client consent to the use of any technology which compromises confidentiality in a meaningful way, including document storage in certain smart-phones, cloud computing services and digital record-keeping services.

We are in an age of vastly changing means of communication, and thus, vastly changing ways of communicating too much. Considering “[a] lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client’s instructions . . . limit that authority[2]” the foregoing informed consent provisions serve to invite what may be an ethically-required (but certainly ethically-relevant) discussion with our clients about how they would limit our use of new technologies in order to limit their exposure to confidentiality violations. If we serve the added purpose of educating ourselves and our clients, so much the better.

7. Keep Your Client’s Head Out of the Sand

Sometimes the end of the case is viewed by the client as an opportunity to renegotiate the fee agreement with respect to any balance due and owing. To avoid this, your fee agreement should include a provision requiring the client to read all bills, to notify your firm – in writing within a specified reasonable time – of any claimed problems with the bill, and it should further provide that the failure to do so constitutes agreement as to the correctness, fairness and accuracy of the bill. By placing the burden on the client to bring these matters to your attention in a timely manner, this provision will protect you against claims that the client was not aware of how expensive the litigation was, and claims that unnecessary or unauthorized work was done.

In conclusion, the family law practitioner must always remember that there are three parties to every fee agreement — your firm, the client and the Court. Although the Court in most cases will never see your fee agreement, if a dispute arises you can be sure that it will be scrutinized. Clarity and attention to detail are critical, so that the client is fully informed as to all rights, responsibilities and duties. Reasonableness in the amount of the fee is also a factor. A well-drafted ethical fee agreement can serve as the roadmap for you to secure your well-deserved fee and will ensure a happy client who will be sending you referrals for years to come.

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Evan R. Marks and Carolyn W. West practice family law together at the “AV” rated law firm of Marks & West, P.A. in Miami, Florida. Mr. Marks has been Board Certified in Marital & Family Law by The Florida Bar since 1995, and he served as Chair of the Family Law Section of the Florida Bar from 2003-04. Mr. Marks is a frequent lecturer on Family Law and Professional Ethics.

Reprinted with permission