Writing An Engagement Agreement: Non-Contingent Fees
Attorney-client engagement agreements, the contract describing and governing the relationship whereby an attorney provides legal services to a client, should always be in writing. Attorneys in California are encouraged to draft their own agreements or modify existing samples provided their iterations do not conflict with California Business and Professions Code §§ 6146 et seq. or the Rules of Professional Conduct.
Per the Model Rules of Professional Conduct, MR 1.5(b). fee arrangements should be communicated in writing unless the attorney regularly represents the particular client. The exception is court-appointed cases, where court rules and statutes will define the scope of the attorney’s representation and terms of compensation.
The scope of representation must be carefully defined in any legal matter. Once an appearance is entered by an attorney in a court of record, the court may force the attorney to remain in a case from initial appearance to appeal even if the engagement agreement does not require otherwise.
California Business and Professions Code § 6148 governs non-contingent fee agreements. It requires attorneys to have a written agreement whenever it is reasonably foreseeable that the client’s total legal expenses, including attorneys’ fees, will exceed $1,000. The attorney is required to provide a fully executed copy of the agreement to the client at the time the contract is signed. Thereafter, section 6148(b) requires attorneys to provide clients with written bills.
In California, a written fee agreement is not required when services are rendered in an emergency to avoid prejudice to the client or where the writing is otherwise impractical when the client is a corporation, when the client, after full disclosure, makes a written waiver of the benefits of § 6148, or when the fee agreement is implied in fact by prior services of the same general kind having been rendered to and paid for by the client.
A non-contingent fee-agreement must state:
(a) any basis for compensation including, but not limited to hourly rates, statutory or flat fees, and other standard, rates and charges;
(b) the general nature of the legal services to be provided; and
(c) the responsibilities of the attorney and client under the agreement.
A client may request a bill at intervals of 30 days or greater. The attorney must provide the bill within 10 days after the demand. All bills must state the amount, rate, and basis for calculation or other methods of determining the attorney’s fees and costs. It is important to note that if an attorney fails to comply with any provision of the statute, the fee agreement becomes voidable at the client’s option and the attorney is only entitled to a reasonable fee.
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