THE ETHICS OF ATTORNEY BILLING PRACTICES AND FILE RETENTION ISSUES

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1 THE ETHICS OF ATTORNEY BILLING PRACTICES AND FILE RETENTION ISSUES Will your fees be held hostage? 1. FEE AGREEMENTS GENERALLY 2007 by Ellen R. Peck. All rights reserved. Permission to reprint may be requested from author. All billing challenges begin with combing through the fee agreement. Anonymous Fee Buster 1.1. In general, the negotiation of a fee agreement is an arms-length transaction. (Setzer v. Robinson (1962) 57 Cal.2d 213, 217, 18 Cal.Rptr. 524, 368 P.2d 124; Baron v. Mare (1975) 47 Cal.App.3d 304, 311, 120 Cal.Rptr. 675.) 1.2. Nevertheless, fee agreements must be fair, reasonable and fully explained to the client. (Severson & Werson v. Bolinger (1991) 235 Cal.App.3d 1569, 172, 1 Cal.Rptr.2d 531; Alderman v. Hamilton (1988) 205 Cal.App.3d 1033, 1037, 252 Cal.Rptr. 845) 2. STATUTORY REQUIREMENTS FOR CERTAIN FEE AGREEMENTS 2.1 Contingency Fee Contracts (Bus. & Prof. C, 6147): The essential requirements: Contract must be in writing and signed by both attorney and client or client s representative; duplicate copy must be given to client. ( 6147(a)) THE ETHICS OF BILLING PRACTICES, PAGE 1

2 2.1.2 Contract must include: The agreed contingency fee rate; How incurred disbursements and costs will affect the contingency fee and the client's recovery; Any compensation to attorney for related matters that arise out of their relationship, not covered by the contingency fee contract (e.g., any collection action); A statement that the fee is not set by law but is negotiable between attorney and client (except in medical malpractice matters); If a medical malpractice action, a statement that the rates set forth in that section are the maximum limits for the contingency fee agreement, and that the attorney and client may negotiate a lower rate. (Bus. & Prof. C, 6147) Remedy for failure to comply: Client may void agreement. Attorney entitled to collect a reasonable fee. (Bus. & Prof. C, 6147(b) Bus. & Prof. C, 6147 not applicable to contingency fee contracts for the recovery of workers' compensation benefits. (Bus. & Prof. C, 6147(c).) Favorite Bloopers found by Fee Busters leading to voiding of a contingency fee agreement: Lawyer fails to have any written agreement. Lawyers fail to sign their fee agreements (or worse, non-lawyer assistants sign, giving rise to charges of unauthorized practice of law claims). Hybrid fee agreements (mixture of hourly rate and contingency) fail to comply with both Bus. & Prof. C, 6147 and Failure to have the statement: the fee is not set by law but is negotiable between attorney and client. Failure to prove that copy of the fully executed agreement given to the client. Failure to show how the client s recovery will be affected by the costs. 2.2 All other written fees : Bus. & Prof. C, Written Fee Contract: Contents; Effect of Noncompliance THE ETHICS OF BILLING PRACTICES, PAGE 2

3 2.2.1 In non-contingency fee cases, where it is reasonably foreseeable that client s total expense will exceed $1,000, the contract must be in writing, signed by both attorney and client (or representative) The contract must contain: The basis of compensation (i.e., hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case. The general nature of the legal services to be provided to the client. The respective responsibilities of the attorney and the client as to the performance of the contract. 2.3 Billing requirements (B&PC, 6148(b)): Bills to client must state: For the fee portion of the bill: The amount, rate, basis for calculation, or other method of determination of the attorney's fees and costs. NO BLOCK BILLING! Task billing please!!!!! Bills for the cost and expense portion of the bill shall clearly identify the costs and expenses incurred and the amount of the costs and expenses If client requests a bill, lawyer must provide within 10 days, unless the attorney has provided a bill to the client within 31 days prior to the request Then, no later than 31 days following distribution of the most recent bill If any fees or costs to that date cannot be accurately determined, they shall be described and estimated. 2.4 Remedy: Failure to comply with either the written fee agreement or billing provisions renders the agreement voidable at the option of the client: the attorney is entitled to collect a reasonable fee. (B&PC, 6148(c)) 2.5. Exceptions to section 6148: Services rendered in an emergency to avoid foreseeable prejudice to the rights or interests of the client or where a writing is otherwise impractical. ( 6148(d)(1)) THE ETHICS OF BILLING PRACTICES, PAGE 3

4 2.5.2 An arrangement as to the fee implied by the fact that the attorney's services are of the same general kind as previously rendered to and paid for by the client. ( 6148(d)(2)) If the client knowingly states in writing, after full disclosure of this section, that a writing concerning fees is not required. ( 6148(d)(3)) If the client is a corporation. ( 6148(d)(4)) Contingency Fee Contracts; Recovery of Claims between Merchants Business and Professions Code sections 6147 and 6148 do not apply to contingency fee contracts for the recovery of claims between merchants (Commercial Code section 2104, arising from the sale or lease of goods or services rendered, or money loaned for use, in the conduct of a business or profession if the merchant contracting for legal services employs 10 or more individuals). 2.7 Fee Busters Favorite Lawyer Bloopers Leading to Voiding Fee Agreements: Charging costs or expenses which were not mentioned in the fee agreement (i.e., other charges applicable to the case ). Example: No mention in the fee agreement that the client will be charged for the cost to the firm for conducting computerized legal research. The client is charged for the hourly rate of the lawyer conducting the legal research and the Westlaw rates charged to the firm. Stating that a cost will be charged without stating what rate will be charged in the fee agreement and then charging a higher rate than the lawyer s cost in the billings. Example: The fee agreement states that the client will be charged for all Westlaw computerized legal research. The Westlaw charges to the firm for September 2006 for Client s task are $ Law Firm charges Client $ for the Westlaw service. Failing to list the hourly rate of all categories of personnel who will be charged to the client. Failure to comply with billing guidelines 2.8 MOST COMMON URBAN MYTH (BESIDES EATING POP ROCKS WITH COCA COLA WILL MAKE YOUR STOMACH EXPLODE) For all fee agreements after 1999, no requirement of disclosing whether legal malpractice policy or its limits. THE ETHICS OF BILLING PRACTICES, PAGE 4

5 But note that there are proposed new California Rules of Court [Legal Malpractice Disclosures] and proposed CRPC [Insurance Disclosure]. See:http://calbar.ca.gov/calbar/pdfs/public- comment/2006/insurance-disclosure-prop- Rules.pdf 2.9 OTHER WAYS YOUR FEE AGREEMENT CAN BE VOIDED: In the Matter of Van Sickle (Rev. Dept. 2006) 4 Cal. State Bar Ct. Rptr. [2006 WL (State Bar Ct.): Where there was no meeting of the attorney s and client s minds respecting a material term the language of the fee agreement was materially ambiguous and therefore the agreement was void and unenforceable. 3. ETHICAL LIMITS ON FEES 3.1 Unreasonable or excessive fees: Not the subject for discipline; charges of excessive or unreasonable fees and costs should be left to the civil courts in a proper action or the fee arbitration system pursuant to Business and Professions Code sections 6200 et seq. (Herrscher v. State Bar (1935) 4 Cal.2d 399, 402, 49 P.2d 832, 833; Bach v. State Bar (1991) 52 Cal.3d 1201, 1207, 278 Cal.Rptr. 371, 373.) 3.2 Discipline for fees that are fraudulent, for overreaching or for unconscionable fees. (Herrscher v. State Bar (1935) 4 Cal.2d 399, 402, 49 P.2d 832, 833) CRPC 4-200(A) provides that: A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee Unconscionable fees Definitions: Where a fee is charged so exorbitant and wholly disproportionate to the services performed as to shock the conscience... (Goldstone v. State Bar (1931) 214 Cal. 490, 499) A gross overcharge of a fee by an attorney constitutes an unconscionable fee. (See Bushman v. State Bar (1974) 11 Cal.3d 558, 563) An element of fraud or overreaching by the attorney, so that the fee charged, under the circumstances, constitutes a practical appropriation of the client's funds. (Herrscher v. State Bar (1935) 4 Cal.2d 399, 401) CRPC 4-200(B) lists factors which courts, attorneys and clients may use in evaluating whether a fee is unconscionable: 1 CRPC means Rules of Professional Conduct of the State Bar of California. THE ETHICS OF BILLING PRACTICES, PAGE 5

6 (1) The amount of the fee in proportion to the value of the services performed. (2) The relative sophistication of the member and the client. (3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly. (4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member. (5) The amount involved and the results obtained. (6)The time limitations imposed by the client or by the circumstances. (7) The nature and length of the professional relationship with the client. (8) The experience, reputation, and ability of the member or members performing the services. (9) Whether the fee is fixed or contingent. (10)The time and labor required. (11) The informed consent of the client to the fee Examples of unconscionable fees: Matter of Van Sickle (2006 Cal. State Bar Ct., Rev.Dept ) 4 Cal.St.Bar.Ct.Rptr. 980 : Plaintiff Ivy Hei, retained Lawyer Van Sickle (two years after his admission), after firing a prior lawyer, Nagel, to represent her in two personal injury actions against two persons allegedly responsible for injuries arising out of the same automobile accident. At the time of the accident, Hei was acting within the course and scope of her employment for the U.S. Postal Service; was seriously injured and, as a result, lost income for two years. Hei and Van Sickle entered into a written fee agreement with Hei for 35% of any Asettlement &/or plus costs. The fee agreement was silent about whether Hei had to pay both lawyers= fees (Van Sickle=s at 35% and Nagel=s at 25%). Van Sickle thought that Hei agreed to take the risk of Paying Nagel=s fee in addition to Van Sickle=s; while Hei denied that Van Sickle ever told her she would have to pay both attorneys fees. Mr. Van Sickle recovered $50,000 on the first matter (which had been offered and rejected by Hei when Nagel represented her); but got a defense verdict after trial on the second matter. The Review Department found that Van Sickle charged an unconscionable fee in violation of CRPC 4-200(A) in his handling of Hei=s personal injury litigation. The Review Department reasoned : THE ETHICS OF BILLING PRACTICES, PAGE 6

7 1. Van Sickle=s written agreement specifying a 35 percent contingency fee, was not unconscionable per se. Rather the facts and circumstances of the case gave rise to the violation. 2. Van Sickle=s fee agreement was void and unenforceable, because (1) the provision that he would receive an attorney fee of 35 percent of any Asettlement & /or plus costs was materially ambiguous and (2) there was no meeting of the minds of Van Sickle and Hei on what it meant. [Van Sickle failed to disclose to Hei that he intended his 35 percent contingency fee to be in addition to the fee earned by her prior attorney, Nagel. Hei believed that the 35% attorney fee was the total fee for both Nagel and Hei. 3. The Review Department noted that Van Sickle=s failure "to disclose the true facts, so that the fee charged, under the circumstances, constituted a practical appropriation of the client's funds under the guise of retaining them as fees " citing to Herrscher v. State Bar, supra, 4 Cal.2d at p If the fee agreement was void and unenforceable, Van Sickle was still entitled to a reasonable fee. 5. Whether Van Sickle=s retention of $10, as his fee was unconscionable would be measured against what he should have obtained as a reasonable fee. 6. The Review Department looked to civil decisional law concerning how to divide attorney=s fee between predecessor and successor counsel in Spires v. American Bus Lines (1984) 158 Cal App.3d 211, 216 and Cazares v. Saenz (1989) 208 Cal.App.3d 279, ) The agreed upon contingent fee acts as an upper limit on the amount to be divided on a quantum meruit theory between the discharged and retained attorneys hired on a contingency basis in the same case. 7. If the upper contingent fee (35%) was divided based upon quantum meruit, van Sickle would be entitled to only 10% of the recovery, since an Arbitration (at which Van Sickle was present as Hei=s counsel) found that Nagel was entitled to 25%. 8. Since Van Sickle retained $10,910.45, more than twice the $5,000 he was entitled to, that shocked the conscience of the Review Department and was unconscionable. The Review Department finding of unconscionability was reinforced by Van Sickle=s overreaching in his fee agreement. Two provisions which were void as against public policy were: (1) The agreement was intended to prohibit Hei from settling or dismissing her case unless respondent agreed, which has long been held to be an improper intrusion on the unilateral right of clients to control the outcome of their cases. (See Hall v. Orloff (1920) 49 Cal.App. 745, 750.) THE ETHICS OF BILLING PRACTICES, PAGE 7

8 (2) The retainer agreement also expressly prohibited Hei from substituting another attorney for respondent without cause unless respondent consented, which violates a fundamental public policy of California, since the client's power to discharge an attorney, with or without cause, is absolute. (Fracasse v. Brent, supra, 6 Cal.3d at p.790.) Note that even though the agreement contained void provisions, it did not prevent a quantum meruit recovery. [The Review Department, did not indicate what types of void provisions could prevent a quantum meruit recovery.] The Review Department also held that Van Sickle=s contingency fee for Hei=s workers= compensation case was unconscionable. As a United States Postal Service employee, Hei received federal workers' compensation medical benefit payments of $6,327.27, paid before she retained Van Sickle and for which the USDOL filed a lien against any personal injury recovery obtained by Hei. Hei and Van Sickle entered into a second contingent fee agreement with Hei to represent her in "enforcing a cause of action arising out of work related injury of 8/18/94 accident" for 25 % of any "Benefits, settlement or judgment" relating to Hei's claim for workers' compensation benefits. After further research, Van Sickle believed that a contingent fee agreement was inappropriate for these services. He and Hei verbally modified the workers' compensation fee agreement to provide (1) for a flat fee in the amount of $2, for the appeal and rehearing of the denial of her claim and (2) that this fee would be taken from the personal injury settlement funds. Van Sickle lost all motions for reconsideration and appeals. Because Hei was found not to have agreed to the modification, the written 25 percent contingency fee agreement was still the operative fee agreement between Van Sickle and Hei. Van Sickle applied $2, (or 35% of the amount of medical benefits) from Hei=s personal injury recovery as his legal fee for legal services rendered in the workers= compensation action. The Court found that Van Sickle was not entitled to any contingent fee for his work in Hei=s workers' compensation case, since the contingency did not occur and Van Sickle failed to obtain any employment benefits for her from the USDOL. Moreover, there was no provision in the agreement that authorized Van Sickle to deduct his fees from Hei's recovery. Therefore his application of any fees in that matter shocked the conscience of the Review Department and was unconscionable. The Court=s finding of unconscionability was again supported by the two overreaching provisions in the fee agreement set forth above. Van Sickle stipulated to a violation of CRPC by failed to advise Hei in writing of her right to obtain independent counsel before securing a promise to pay a $500 flat fee for an appearance at the Nagel fee arbitration matter with a deed of trust to her house. THE ETHICS OF BILLING PRACTICES, PAGE 8

9 The Court further found that Van Sickle=s representation of Hei at a fee arbitration against Nagel did not constitute a conflict of interest in violation of CRPC 3-310(B)(4),since Mr. Sickle did not actually then know that his interpretation of his fee agreement was ambiguous and that he would have to split the fee with Mr. Nagel. In a 2005 published opinion, Mr. Van Sickle received a one year suspension, stayed, 30 days actual suspension, two years probation, and other terms and conditions, including restitution of $8, plus interest at a rate of 10 percent per annum from Van Sickle=s receipt of the funds. However, the Supreme Court rejected this disposition and remanded the matter for consideration of greater discipline. After remand, the Review Department increased the actual discipline to three months suspension. In re Silverton (2005) 36 Cal.4th 81, 29 Cal.Rptr.3d 766. In three client matters, after obtaining recoveries for personal injuries and taking his fees and costs, Silverton made agreements with each to compromise their medical bills and keep the difference in exchange for a small payment to the client. In each, Silverton kept about 75% of the savings, which the Supreme Court found to be unconscionable. In the Matter of Wells (2005 State Bar Ct. Rev. Dept.) 4 Cal.St.Bar.Ct.Rptr. 896 [2005 WL , 2005 Daily Journal D.A.R. 14,016 (Cal. State Bar Ct., Rev.Dept. 12/5/2005), as modified (3/7/2005)] Respondent was actually suspended for six months, placed on probation for two years and ordered to pay restitution to her clients. Respondent moved to South Carolina, opened a law office and provided legal services to residents of South Carolina without ever being admitted to practice in that state. She was found liable for engaging in the unauthorized practice of law (UPL) in violation of rule 1-300(B), charging an illegal and unconscionable fee in violation of Rule 4-200(A), and failing to return unearned fees in violation of rule 3-700(D)(2) in two separate client matters. In the first matter, Respondent entered a fee agreement under which client agreed to pay her a $5,000 retainer fee and $3,000 for expenses, which would be credited dollar for dollar against the recovery and refunded to the client, and 33% of any recovery. Client advanced the $8,000 and eventually defendant issued a check in the amount of $9,000 in settlement of the claim. Respondent paid the client $5,400 out of the recovery, and kept $3,600 (her $3000 fee and $600 she claimed in costs). She never returned any of the $8000 in fees and expenses advanced. The Court concluded the fee charged was illegal as Respondent was not entitled to charge or collect a fee for UPL, Birbrower, Montalbana, Condon and Frank v. Superior Court, 17 Cal.4th 119, 136 (1998), nor was she entitled to a quantum meruit recovery because her services were rendered under a contract that was unenforceable as illegal. Huskinson & Brown, LLP v. Wolf, 32 Cal.4th 453, 463, 9 Cal. Rptr.3d 693 (2004). Moreover, the Court deemed the fee unconscionable as Respondent collected fees totaling $11,600, which the Court noted was almost three times the amount [the client] agreed to pay her, and were so wholly disproportionate to what he agreed to pay as to shock the conscience. In the second matter, Respondent never entered into a fee agreement with the client. In THE ETHICS OF BILLING PRACTICES, PAGE 9

10 settlement of the action, the defendant paid the client $10,000 and an additional $5,000 as attorney fees. Respondent split the $5,000 with the referring lawyer and kept the $1,500 the client had advanced her at their first meeting. As in the first matter, the Court concluded the fee was illegal because she had engaged in UPL. The Court also concluded Respondent had collected an unconscionable fee by unilaterally charging and collecting $6,500, or 43-1/3% of the gross recovery. Cf. Matter of Kroff, 3 Cal. State Bar Ct. Rptr. 838 (Rev.Dept. 1998) (failure to obtain client s informed consent to fee renders fee unconscionable where lawyer unilaterally raised fee $ in one matter, and $ in another). Matter of Scapa & Brown (Rev.Dept. 1993) 2 Cal. State Bar Ct.Rptr. 635, 642--fee agreement requiring client to pay 'minimum fee' upon attorney's discharge, regardless of whether any work done, held unconscionable. Dixon v. State Bar (1985) 39 C3d 335, 339, 216 CR 432, : Lawyer charged a $4,500 'nonrefundable' fee in a civil case without a written fee agreement. After discharge by Client one month later, Lawyer sent Client a fee agreement whereby Lawyer was to receive a contingent fee regardless of the outcome of the litigation or Lawyer's discharge. Lawyer did not refund the money or provide an accounting to substantiate 200 hours he claimed he spent on the case; held Lawyer attempted to charge an unconscionable fee in violation of CRPC 4-200(A) Illegal fees Definition: Rules don t define Examples of illegal fees: Fees exceeding statutory fee limits: Fees charged or collected in excess of applicable statutory limits are illegal and can result in disciplinary action regardless of their reasonableness. (See Matter of Shalant (Rev. Dept. 1995) 4 Cal.State Bar Ct. Rptr. 829 and Matter of Harney (Rev.Dept. 1995) 3 Cal. State Bar Ct.Rptr. 266, fees exceeding MICRA limits; Estate of Hastings (1952) 108 CA2d 713, 716, 239 P2d 684, charging contingent fee rather than statutory fixed fee in probate proceedings; Workmen's Comp. Appeals Bd. v. Small Claims Court of Alameda County (1973) 35 CA3d 643, 646, 111 CR 6, 8--obtaining fees in workers' comp proceedings in excess of those allowed by WCAB) Fee splitting agreements not in compliance with CRPC and (McIntosh v. Mills (2004) 121 CA4th 333, , 17 CR3d 66, fee splitting agreement between lawyer and non-lawyer) But see Los Angeles County Bar Association Formal Op. No. 515 (08/15/05) - Ethical Issues Arising from Agreements Between Attorney and Client to Split an Award of Statutory Attorney s Fees THE ETHICS OF BILLING PRACTICES, PAGE 10

11 FACTS: Client, a non-profit organization, approaches Law Firm to represent Client in a public interest case involving enforcement of important public rights under state law. Because of the limited financial resources of Client and the possibility of recovering fees for the enforcement of the important public rights, Law Firm proposes a retainer agreement offering Client the following fee terms: Client will pay for Law Firm s legal services on the case based on Law Firm s regular hourly rate, up to a certain sum, at which point Law Firm will continue to accrue its charges but without client having any obligation to pay them. If the case is successful, Law Firm will move for an award of private attorney general fees pursuant to Code of Civil Procedure and attempt to recover from the defendants in the case the full amount of the fees earned. For example, Law Firm agrees to cap Client's fee obligation at $50,000, Law Firm accrues a total of $80,000 of attorney time working on the case. If the case is successful, Law Firm would move the court for the award of private attorney general fees in the amount of $80,000. If the court awards $80,000 in fees, Law Firm will receive $30,000 for its noncompensated time and reimburse the balance to client. If the judge awards less than $80,000, the fees awarded will be paid first to the Law Firm to the extent of its unpaid compensation with any amount of the award over and above the unpaid compensation to be reimbursed to the client. SUMMARY OF OPINION: Rule of Professional Conduct prohibits a member of the bar from sharing a legal fee with any person who is not a lawyer. The agreement described above does not violate RPC because the reimbursement to the client, if any, is a refund of an overpayment, not a sharing of an earned fee. The agreement anticipates the possibility of receiving an award of private attorney general fees pursuant to Code of Civil Procedure An award of "private attorney general" fees pursuant to Code of Civil Procedure is properly made to the attorneys rather than to plaintiffs themselves.2 If such fees are awarded in an amount that would result in an excess recovery of fees (i.e. fees greater than the value of the legal services agreed to by the parties) the attorneys can, and indeed must, under the terms of the retainer agreement, refund the amount of overpayment to their clients without violating RPC A contingency fee agreement in a civil rights action providing for Lawyer s recovery of both contingent and statutory fees which seeks to avoid court review for reasonableness of the fee is illegal. (Matter of Yagman (Rev.Dept. 1997) 3 Cal. State Bar Ct.Rptr. 788, 799) Charging or collecting fee without court approval: Where court approval is required for an attorney's fee (e.g., probate, bankruptcy), a fee charged or collected without obtaining such approval constitutes an 'illegal' fee. (Matter of Phillips (Rev.Dept. 2001) 4 Cal. State Bar Ct.Rptr. 315, 323 collecting fee in probate case without obtaining court approval.) 3.4 Returning unearned fees (CRPC 3-700(D)(2)) THE ETHICS OF BILLING PRACTICES, PAGE 11

12 3.4.1 True retainer fee is non-refundable But see Matter of Brockway (2006 Cal. State Bar Ct., Re v.dept) 4 Cal.St.Bar.Ct.Rptr Brockway ( Respondent ) was actually suspended for two years, placed on probation for five years, subject to conditions. The Court held Respondent had failed to perform with competence in four separate matters in violation of rule 3-110(A) and had also improperly withdrew from employment in violation of rule 3-700(A)(2) in each of those matters. Respondent was found to have failed to respond to client inquiries in violation of Bus. & Prof. Code 6068(m), failed to render an accounting in violation of rule 4-100(B)(3), failed to refund unearned fees in violation of rule 3-700(D)(2), and failed to return the client file in violation of rule 3-700(D)(1). In addition, in two of the matters the Court held that the clients providing funds to Respondent at the beginning of the representation was an advance of fees and not, as denominated by Respondent in his fee agreement, a true retainer. The Court noted it must look beyond this characterization to determine the obligations of the parties. See Matter of Lais, 3 Cal. State Bar Ct. Rptr. 907, 923 (1998). In one matter, the Court reasoned first, that Respondent s agreement had not defined true retainer, nor did it expressly state that the fee was due and payable regardless of whether any professional services were actually rendered. Second, quoting Matter of Fonte, 2 Cal. State Bar Ct. Rptr. 752, 757 (1994), it observed the agreement did not require that respondent make any particular provision to allot or set aside blocks of time specifically devoted to pursuing these clients claims, nor did the agreement set forth a specific period of time when respondent was obligated to turn away other business in order to proceed with the [] matter. Finally, the fact the agreement expressly provided Respondent would represent the client in her INS matter belied Respondent s contention the money the client had advanced was simply to assure Respondent s availability. Similarly, in the other matter, the Court noted that Respondent's admission that the funds were paid for the performance of legal services vitiates his claim that the fee he received from Chen was a true retainer Nonrefundable fee provisions: No California court has held a nonrefundable fee clause to be invalid per se, although individual nonrefundable fee provisions have been held invalid. (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2004) 5:285, p ) The use of non-refundable fees can be so fraught with peril.... See Attachment 1. Key issue: Whether the fee has been 'earned' in any realistic sense or whether allowing the attorney to retain the full fee would amount to charging an unconscionable or illegal fee under the particular facts. [See Bar Ass'n of San Francisco Form.Opn ] Liquidated damages provision upon client's exercising right to terminate: No THE ETHICS OF BILLING PRACTICES, PAGE 12

13 known California case has considered the validity of a provision for liquidated damages in the event the client exercises the right to discharge the attorney (e.g., '$10,000 in the event client elects to discharge attorney before completion of services described in Paragraph _) '). Consider the competing public policy of the client's absolute right to terminate the attorney with or without cause at any time Minimum fe e : A 'minimum' fee is another way to characterize a 'nonrefundable' advance fee and may have enforceability issues. Note: 'minimum' fees are likely to confuse the client (who may interpret them as 'flat' or 'maximum' fees). 3.5 Accounting for advanced fees (CRPC 4-100(B)(3)): The duty to account for client funds includes the duty to provide an accounting for fees advanced and of fees charged against that advance, and to explain such charges. (Matter of Fonte (Rev.Dept. 1994) 2 Cal. State Bar Ct.Rptr. 752, 758.) 3.6 Disputed fees in CTA (CRPC 4-100(A)(2): If fees are on deposit in a clients trust account at or about the time of that a client disputes the lawyers entitlement to the fees, the disputed fees must be retained in the clients trust account until the dispute is resolved. 3.7 Change in hourly rate during representation of a client: You can change the hourly rate of fees charged the client if (1) your written fee agreement provides that you may increase the hourly rate with notice to the client and (2) you give the client 30 days notice. (Setzer v. Robinson (1962) 57 Cal.2d 213, 18 Cal.Rptr. 524, 368 P.2d 124.) GOOD NEWS ABOUT ATTORNEY FEES LIENS: County of Los Angeles v. Construction Laborers Trust Funds for Southern California Admin. Co. (2006) 137 Cal. App. 4th 410 (2006) Attorney and client entered into a written fee agreement covering attorney s representation of client in a federal court case. The agreement provided the attorney with a lien against the client s claims (recovery). Attorney then represented client on a number of other matters. Although there were no additional written agreements, attorney and client both acknowledged that the attorney s representation of client on the additional matters was on the same terms as the original written agreement. In connection with one of the additional matters, attorney and two of client s creditors had competing claims to a settlement. Attorney notified the other parties (with a copy to the client) that attorney was placing a $55,000 attorney s fee lien on the proceeds of the settlement. Because of the competing claims, the funds were deposited into court in an interpleader action. The trial court gave priority to the attorney s fee lien on grounds it was earlier in time than one of the other claimant s liens. The other lien claimant appealed on grounds that the attorney s lien was oral and therefore not enforceable. The court of appeal affirmed the trial court s ruling, holding that the attorney had an equitable lien created by the client s promise to pay the attorney from the recovery, the attorney s responsible conduct in representing the client even though he was not being paid, and the attorney s detrimental reliance on the understanding he would be paid from the proceeds. The THE ETHICS OF BILLING PRACTICES, PAGE 13

14 th court of appeal did not mention Fletcher v. Davis (2004) 33 Cal. 4 61, holding that in an hourly fee arrangement, an attorney s oral charging lien is unenforceable and that the attorney must comply with the provisions of Rule of Professional Conduct (See also, State Bar Formal Opinion No concluding that compliance with Rule is not necessary to enforce a charging lien in a contingency fee agreement.) State Bar of California Formal Opinion No Attorney s Fees - Charging Lien This Opinion addresses an attorney s compliance with California Rule of Professional Conduct in connection with inclusion of a charging lien in a contingency fee agreement. The Opinion provides that the inclusion of a charging lien in the initial contingency fee agreement does not create an Aadverse to the client within the meaning of rule of the California Rules of Professional Conduct. Unlike a charging lien in an hourly case, the charging lien is a natural corollary of the contingency arrangement. This conclusion is not intended to discourage lawyers from conforming to the standards established in rule in their contingency agreements. OUTSOURCING The San Diego County Bar Association Le gal Ethics Committee Ethics Opinion concluded that outsourcing does not dilute the attorney s professional responsibilities to his client, but may result in unique applications in the way those responsibilities are discharged. Under the facts recited by the Committee, California attorneys may satisfy their obligations to their client in the manner in which they use the outsourced entity, but only if they have sufficient knowledge to supervise the outsourced work properly and they make sure the outsourcing does not compromise their other duties to their clients. Moreover, the attorneys must inform the client of the outsourced entities anticipated involvement at the time they decided to use the firm to the extent stated in the hypothetical. Los Angeles County Bar Association Formal Opinion No. 518 concluded that a lawyer in a civil case who charges an hourly rate may contract with an out-of-state company to draft a brief provided (1) the attorney is competent to review the work, remains ultimately responsible for the final work product filed with the court by the lawyer on behalf of the client, (3) the attorney does not charge an unconscionable fee; (4) client confidences and secrets are protected; and (5) there is no conflict of interest between the client and the contracting entity. The lawyer may be required to inform the client of the nature and scope of the contract between the lawyer and the out-of-state company if the brief is a significant development in the representation or if the work is a cost which must be disclosed to the client under California law. If the client paid separately for the service, any refund must be passed through to the client. THE ETHICS OF BILLING PRACTICES, PAGE 14

15 HANDLING ENTRUSTED FUNDS AND PROPERTY Trust account mismanagement is the surest way to become a target of State Bar disciplinary investigation! USE OF CREDIT CARDS : STATE BAR OF CALIFORNIA FORMAL OPINION NO : 1. May an attorney ethically accept payment of earned fees from a client by credit card? Yes. An attorney may ethically accept payment of earned fees from a client by credit card. In doing so, however, the attorney must discharge his or her duty of confidentiality. 2. May an attorney ethically accept payment of fees not yet earned from a client by credit card? Yes, an attorney may ethically accept a deposit for fees not yet earned from a client by credit card, but must discharge his or her duty of confidentiality. 3. May an attorney ethically accept payment of advances for costs and expenses from a client by credit card? No, an attorney may not ethically accept a deposit for advances for costs and expenses from a client by credit card because the attorney must deposit such advances into a client trust account and cannot do so initially because they are paid through a merchant account subject to the credit card issuer s control and invasion. LAWYER AS ESCROW HOLDER: Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 693, 697, 44 Cal.Rptr.3d 702. Virtanen, at pp. 706, held that a lawyer who, in the course of representing a client in a transaction, also agrees to act as an escrow holder of funds or property which are the subject of the transaction, the lawyer owes fiduciary duties to all parties to the escrow. Where there are conflicting demands between the lawyer s client and another escrow party, the lawyer may not favor the client s demands over those of another party to the escrow, and "convert" the escrowed property for the client's use. This case involved a lawyer who agreed to hold stock involved in a purchase and sale. Even though Seller terminated the transaction and requested the return of the stock, the lawyer caused the transaction to go forward and was thereafter sued by Seller for breach of fiduciary duty. THE ETHICS OF BILLING PRACTICES, PAGE 15

16 DISPUTES ABOUT ATTORNEY S FEES IN A TRUST ACCOUNT: STATE BAR OF CALIFORNIA FORMAL OPINION NO Is an attorney who has withdrawn a fee from a client trust account in compliance with Rule 4-100(a)(2), ethically obligated to return any of the withdrawn funds to the client trust account when the client later disputes the fee? Once an attorney has withdrawn a fee from a client trust account in compliance with rule 4-100(A)(2), those funds cease to have trust account status. As such, there is no obligation to return to the trust account amounts that are later disputed by the client. OVERDRAFT PROTECTION: CAL BAR FORMAL OPINION NO An attorney does not commit an ethical violation merely by obtaining or using overdraft protection on a Client Trust Account, so long as the protection in question does not entail the commingling of the attorney's funds with the funds of a client. Overdraft protection that compensates exactly for the amount that the overdraft exceeds the funds on deposit (plus funds reasonably sufficient to cover bank charges) is permissible, whereas overdraft protection that automatically deposits an amount leaving a residue after the overdraft is satisfied is not. In all cases, banks must report to the State Bar any presentment of a check against a Client Trust Account without sufficient funds, whether or not the check is honored. Although overdraft protection will not avoid State Bar notification, nor exculpate any unethical conduct that caused the overdraft, it may avoid negative consequences to a client resulting from a dishonored check. When a check is issued against a Client Trust Account with insufficient funds to cover the amount of the check, an attorney must deposit funds sufficient to clear the dishonored check or otherwise make payment, must take reasonably prompt action to ascertain the condition or event that caused the check to be dishonored, and must implement whatever measures are necessary to prevent its recurrence. In addition, if a client will experience negative consequences from the dishonoring of the check, the attorney may have to advise the client of the occurrence. An attorney must withdraw earned fees from a Client Trust Account at the earliest reasonable time after they become fixed in order to comply with the attorney's ethical obligations, but need not do so immediately. FREE RESOURCE! Get the State Bar s HANDBOOK ON CLIENT TRUST ACCOUNTING FOR CALIFORNIA ATTORNEYS 2006 Edition Free download at: THE ETHICS OF BILLING PRACTICES, PAGE 16

17 CLIENT FILE MAINTENANCE 1. INTRODUCTION Proliferating files from long-gone clients create law office space problems, storage problems, additional financial issues and other unanticipated problems upon dissolution of a law partnership or corporation, relocation of law offices or retirement. Even with the technological revolution, it was not cost-effective to scan hundreds or thousands of old files and store them electronically. California's professional standards are generally silent about lawyers' duties to maintain former clients' files. However, the Restatement of the Law Governing Lawyers requires that a lawyer take reasonable steps to safeguard documents in the lawyer's possession relating to the representation of a client or former client' (Rest.3d Law Governing Lawyers 46(1)9(1)). Ethics opinions talk about the source of our duty to maintain former client files long after a case or engagement has terminated. One ethics committee observed that the papers in a client's file belong to the client and must be released promptly to the client following termination of the attorney-client relationship, if requested by the client. (Weiss v. Marcus (1975) 51 Cal.App.3d 590,599, 124 Cal.Rptr. 297; Rule 3-700(D)(2), Rules of Professional Conduct of the State Bar of California.) However, if the client does not request the file, the client's right to the file continues after termination of the attorney-client relationship. (Los Angeles County Bar Association Formal Op. No. 475 and No. 330 (Nov. 30, 1972)) The Bar Association of San Francisco ethics committee found that an attorney is a bailee of all papers which the client has given to the lawyer. This is based upon lawyers' duties to take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client." (Bar Association of San Francisco Formal Opinion ) 2. LAWYERS MAY ETHICALLY DESTROY FORMER CLIENT FILES, SUBJECT TO CERTAIN RESTRICTIONS 2.1. There is a split of ethics opinion authority concerning how long closed files may be kept. The Rules of Professional Conduct and State Bar Act do not specifically direct how long an attorney should keep a client's files. But rule 4-100(B)(3) requires records regarding entrusted client property and funds to be maintained five years after the last funds and property has been disbursed to the client. One bankruptcy case has applied this five- year rule' to former client files. (Ramirez v. Fuselier (9th Cir. BAP 1995) 183 B.R. 583, 587 & fn. 3; Los Angeles Bar Association Form. Opn. 475 (1994) [recommending five-year retention period for client files "by analogy" to rule 4-100(B)(3)].) However, another ethics committee opined that the length of time papers must be maintained depends upon the nature of the document, the nature of the services rendered to the client, and any other THE ETHICS OF BILLING PRACTICES, PAGE 17

18 factors to determine whether prejudice to the client would arise by destruction of the papers." (Bar Association of San Francisco Form. Opn ) 2.2 There is a split of e thics opinion authority concerning whether old client files may be destroyed without notice to clients. L.A. County Bar Association Formal Opinions 491 opined that before a law firm may destroy its office closed files of a deceased client where there is no preexisting agreement or statutes governing disposition thereof, the firm is obligated to give or attempt to give notice to the legal representatives or residuary legatees of the deceased client that the Law Firm intends to destroy the office files, except where (i) there is no pending matter or any reasonably foreseeable possibility that the files may be necessary to pursue or protect legal interests of the deceased client; and (ii) there is a reasonable belief that there are no documents of significant pecuniary or intrinsic value. The Bar Association of San Francisco ethics committee opined that all documents not necessary to protect the client from prejudice or intrinsically valuable could be destroyed. (Bar Association of San Francisco Form. Opn ) However, an older LA County Bar Association ethics opinion opined that a law firm had an ethical obligation to try to return files to former clients or try to obtain client authorization to destroy closed files (Los Angeles Bar Association Form. Opn. 475). 2.3 How Long Do You Retain Files? Risk Management Issues The two ethics opinions discussed above opined that all papers with no intrinsic value in client files may be destroyed without notice to the client and in the absence of a fee agreement provision for file retention and destruction. But how long must you keep the files? Analogous authority suggests a minimum of five years. (LACBA Op. 475.) In some fields of law, as a matter of risk management, a longer time might be appropriate. Example: Family Law Clients: Melding these three opinions together, family law practitioners may desire to retain files for twenty-one (21) years. Reason: All child custody issues regarding even the possibility of unborn children would have surfaced within nineteen years of closure (one year for pregnancy and birth; eighteen years until the child reaches majority). Two additional years for the running of a statute of limitations to run on the filing of a malpractice action and notice to you have been added. Example: Personal Injury Cases Involving Minors: For risk management purposes, the file should be retained until at least two years after the child reaches majority, to ensure that you do not need the file to defend a legal malpractice action. Example: Criminal Law: Criminal files must be maintained for the life of the former client." (Los Angeles Bar Association Form. Opn. 475 (1994), 420.) 2.4 There are some documents that may not be destroyed THE ETHICS OF BILLING PRACTICES, PAGE 18

19 There are some documents that you cannot destroy without the client's permission or notice to the affected client. These include: Documents of intrinsic value or significant pecuniary value, which include Documents such as money orders, travelers checks, stocks, bonds, wills, original deeds, original notes, judgments and the like which have value, or may have value, in and of themselves or which themselves create or extinguish legal rights or obligations. (Los Angeles Bar Association Form. Opn. 475 (1994); 491, fn. 5) Note: if the case is notorious or if the client is a celebrity, then other documents may have significant pecuniary value because the client or the client's heirs can sell the documents or use them to create wealth, for example, by writing a tell-all memoir." (Los Angeles Bar Association Form. Opn. 491) Any documents required to be deposited in court pursuant to Probate Code 700, et seq. (An original will, declaration of trust, trust amendment or other original document modifying a will or trust; a signed original power of attorney; a signed original nomination of conservator; or any other signed original instrument that the attorney and depositor agree in writing to place on deposit (Prob. Code 704).) Also, criminal files must be maintained for the life of the former client." (Los Angeles Bar Association Form. Opn. 475 (1994), 420.) 2.5 Do you need not try to locate former clients to get permission to destroy their files? Contacting former clients concerning file destruction is required by Los Angeles Bar Association Form. Opn As noted above, two other ethics opinions do not require it. Many lawyers do not want the burden and expense of contacting former clients prior to file destruction. Others, want to go through the process. If you decide that you want to contact former clients before destroying their files, here is the procedure recommended by Formal Opinion 475: The effort to find former clients You are required to pursue all reasonably available means' to notify a former client in writing, preferably by certified mail to the client's last known address. Reasonably available means' does not require you to hire an investigator, but you should consult the file, public telephone directories, organizations' membership directories, third parties who might have information to locate the former client's last known address or the internet." (Los Angeles Bar Association Form. Opn. 475) Content of notice Once you have an address, the content of the former clients' notices may vary depending upon the THE ETHICS OF BILLING PRACTICES, PAGE 19

20 circumstances of the case or the nature of the relationship. Minimally, your notice should advise (1) that the files are available for release to the client; (2) that you seek the client's instructions concerning the file's disposition; (3) that the file will be destroyed if no contrary instruction or response is received after at least a 90-day period; and (4) when the destruction will occur (after at least a 90-day notice period) (Los Angeles Bar Association Form. Opn. 475) If the client can not be located or does not respond, if at least five years has passed since the matter was closed, if the matter was a civil case and if at least a 90-day period has elapsed after the sending of a notice, then the file may be destroyed. 3. ALL FILE DOCUMENTS MUST BE INCINERATED, SHREDDED OR DESTROYED BY SOME MEANS THAT WILL ENSURE CONFIDENTIALITY. All documents which can be destroyed must be incinerated, shredded or some other means used to preserve confidential information pursuant to Business and Professions Code 6068(e) and Evidence Code 950 et seq. 4. HAVE A FILE RETENTION AGREEMENT PROVISIONS IN FIRM FEE AGREEMENTS If you have not already done so, now would be a good time to include a file retention/destruction provision in your firm fee agreement for all client matters. Here is a sample for your review and modification for your area of practice: If, upon conclusion of Attorney s services, Client does not request the return of Client s file in writing, Attorney will retain Client s file for a period of five years, after which time, Attorney may have Client s file destroyed. If Client desires to have Client s file maintained beyond five years, a separate written agreement must be made between Attorney and Client, which agreement may provide for Client to bear the cost of maintaining the file. OPTIONAL: In the event Client wishes Attorney to transfer possession of Client's file to Client or a third party, Client shall make the request in writing and Client or the third party shall acknowledge receipt of the file in writing. Attorney is authorized to retain a copy of Client's file for Attorney's use at Client's expense. Client's file includes Client's papers and property as defined in Rule 3-700(D)(1) of the California Rules of Professional Conduct.) (See Form 5:M, Vapnek, Tuft, Peck & Wiener) Cal. Practice Guide: Professional Responsibility (The Rutter Group 2005).) THE ETHICS OF BILLING PRACTICES, PAGE 20

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