Table of Contents. Foreword... ix About the Authors... xi How to Use the Forms on Disk... xxiii Summary of Contents... xxvii

Transcription

1 Foreword... ix About the Authors... xi How to Use the Forms on Disk... xxiii Summary of Contents... xxvii 1 The Attorney/Client Relationship: Ethical Considerations Underlying Fee Agreements Ronald J. Shaffer Amit Shah 1-1. Introduction The Rules of Professional Conduct Regarding Fee Agreements Fee Disputes with Clients and Other Attorneys Supreme Court Requires Disclosure of Lack of Malpractice Coverage Conclusion 7 2 Bankruptcy Sara A. Austin 2-1. Scrutiny of the Bankruptcy Court Fee Disclosure Fee and Retainer Agreements Fee Applications Retaining Professionals 12 Agreements 13 2A Chapter 7 Retainer Agreement 15 2B Chapter 13 Retainer Agreement 17 2C Chapter 13 Schedule of Additional Fees 19 2D Official Form B E Chapter 13 Notice of Application to Approve Counsel Fees 21 2F Chapter 13 Order Approving Counsel Fee 22 2G Chapter 13 Certification of No Response 23 xxix

2 2H Chapter 13 Certification of Service 24 2I Chapter 13 Application for Compensation and Reimbursement of Expenses 25 3 Business Entities Jonathan Samel 3-1. General Fee Agreement Considerations Business Organization as Client The Client Defined Conflicts of Interest Representing the Principals 31 Agreement 33 3A Business and Corporate Law Sample Fee Agreement 35 4 Criminal and Juvenile Criminal Marc Robert Steinberg 4-1. Introduction Rules of Professional Conduct Fee Letters Suggestions on Charging Fees Rules for Setting Fees 46 Agreements 51 4A Client Information Form 53 4B Privacy Policy Notice 54 4C Standard Fee Engagement Letter 55 4D Short Fee Letter 58 4E Homicide/Escrow Anticipated Costs 59 4F Juvenile Fee Letter 61 4G Associate Representation Letter 64 4H Magisterial District Judge Hearing Letter 67 4I Waive Preliminary Hearing Fee Letter 69 4J Pardon Fee Letter 71 4K Fee-for-Another Letter 73 Appendices 77 4A Formal Opinion B Formal Opinion C Inquiry No D Formal Opinion E Ryan v. Butera, Beausang, Cohen & Brennan 97 xxx

3 5 Elder Law Jeffrey A. Marshall Matthew J. Parker 5-1. Types of Fee Agreements Hourly Based Fees Contingent Fees Percentage Fees Flat (Fixed) Fees Statutory Fees Some Practice Tips Use of Flat Fees Use of Standard Written Fee Schedule Fee Agreements for Guardianships Fees Paid by Third Parties Use of Engagement Letters Use of Nonrepresentation and Termination Letters Use of Closing Letters 117 Agreements 119 5A Medicaid Planning Fee Agreement 121 5B Standard Fee Schedule 127 5C Guardian Fee Agreement 134 5D Estate Planning Engagement Agreement Unmarried Client 136 5E Nonrepresentation Letter 139 5F Sample Closing Letter Employment Law Ronald H. Surkin 6-1. The Well-Constructed Fee Agreement in a Plaintiff s Discrimination Case The Scope of the Representation The Fee The Contingent Percentage Expenses Retainer Blended Contingent and Hourly Fee Agreement Court-Awarded Fees Special Issues The Impact of Decisions Regarding Settlement Termination of the Relationship Alternative Dispute Resolution (ADR) Federal Income Tax Considerations Representation of Multiple Plaintiffs 160 xxxi

4 6-2. Fee Agreements with Employees in Cases Other Than Employment Discrimination Fee Agreements with Employers Identifying the Client Joint Defense and Conflicts Payment of Legal Fees of Present or Former Employees Indemnification Maintenance of the Attorney/Client and Work-Product Privileges Conclusion Wills and Estates Jerry B. Chariton 7-1. General Considerations in Creating Fee Agreements for Estate Planning, Estate Administration, and Trust Administration Special Considerations for Estate Planning Special Considerations with Regard to Estate Administration Special Considerations with Regard to Trust Administration Circular Federal Trade Commission 210 Agreements 215 7A Initial Engagement Letter Estate Planning for One Spouse with Alternative Provisions for Joint Representation 217 7B Initial Letter to Client Short Form 232 7C Initial Engagement Letter Long Form Executor 234 7D Initial Engagement Letter Long Form Trustee Family Law Lori K. Serratelli Mary Ann Petrillo 8-1. Introduction Necessary Components of the Fee Agreement Problem Areas Open Adoption/Act Agreements 255 8A Sample Fee Agreement for Family Law Matters 257 8B Fee Agreement for Private Adoption 261 8C Fee Agreement Representing the Birth Mother in Adoption 264 xxxii

5 9 Intellectual Property Law Manny D. Pokotilow 9-1. Identify the Client Contingent Fee Agreements Avoid Ambiguities Statutory Deadlines Conflicts of Interests 271 Agreements 273 9A Engagement Letter 275 9B Contingent Fee Agreement 277 9C Follow-up Letter to Engagement Letter and Contingent Fee Agreement 280 9D Non-Engagement Letter Personal Injury Timothy A. Shollenberger Adam T. Wolfe Ethical Considerations Agreement Must Be in Writing Division of Fees Charging Liens Elements of Personal Injury Fee Agreement Power of Attorney Scope of Agreement Fees Third-Party Claim Upon Withdrawal or Discharge Minor s Claim Special Considerations in Automobile Cases Costs Duties of the Client Unpaid Medical Bills Appeals Disposal of Closed Case File 289 Agreements A Authorization to Settle Personal Injury B Settlement Analysis C Settlement Distribution D Power of Attorney and Contingent Fee Agreement Third-Party Auto E Power of Attorney and Hourly Fee Agreement First-Party Benefits 299 xxxiii

6 10F 10G Power of Attorney and Contingent Fee Agreement General Tort 301 Power of Attorney and Contingent Fee Agreement Medical Malpractice Real Estate Ronald M. Agulnick Confirmatory Language A Statement of the Project Proposed Fee Agreement Terms of Payment Limits of Confidentiality Intellectual Property Disclaimer Miscellaneous Matters Conclusion Social Security Disability Benefits Steven M. Rollins Introduction Fees Under the Social Security Act Administrative Work Before the SSA Fee Agreement Process Fee Petition Process Work Before a Federal Court Payment of Fees Costs and Expenses Fees Under the Equal Access to Justice Act Penalty for Charging and Collecting a Fee That Is Not Approved 326 Appendix A Form SSA-1560-U Workers Compensation Tereasa Rerko Format and Style Key Components 334 Agreement A Workers Compensation Fee Agreement 339 xxxiv

7 14 Contract Law Timothy Murray General Principles Drafting a Fee Agreement Involving Contract Law Avoid Drafting by Formbook Discussing the Agreement with the Client Contents of Fee Agreement Fees Hourly Fees Contingent Fees Costs Scope of Representation Duties of the Client Payment No Guarantee Clause Personnel Integration Clause Signature Lines Don t Forget About the Agreement Checklist for Transactional Counsel Checklist for Litigation Counsel 349 Agreement A Retainer Agreement Entertainment Law Todd J. Shill John R. Martin Introduction Types of Fee Agreements Hourly Fixed Rate Percentage Ethical Considerations Fees Must Be Reasonable Contingent Fee Agreements Must Be in Writing (and All Fee Agreements Should Be) Shopping or Commission-Based Agreements as a Business Transaction? Prohibition on Acquisition of Literary Rights Does Not Preclude an Attorney from Acquiring an Ownership Interest in Literary Property 363 xxxv

8 Agreements A Hourly Fee with Retainer B Flat Fee C Contingency Fee Oil and Gas Tate J. Kunkle W. Steven Berman Introduction Review the Agreement with the Client Agreements Are Required To Be in Writing for Contingency Cases and Should Be in Writing in All Other Fee Arrangements Division of Fees Contingency Fee Agreement Authority to Represent Scope of Agreement Fees Costs Withdrawal or Discharge Duties of Client Unpaid Medical Bills No-Guarantee Clause Retention of Client File Hourly Fee Agreement Payment Personnel Integration Clause Fully Executed Agreement 391 Selected Rules of Professional Conduct 393 xxxvi