Washington Lawyer - November/December 2019 - 8

PRACTICE MANAGEMENT

GOT A NEW CLIENT? DOCUMENT IT.

By Dan Mills

hat is the best way to create a fee agreement
on the fly? Before we get to the answer,
understand that neither the D.C. Bar nor the
D.C. Court of Appeals has approved fee agreement
forms. As much as lawyers love forms, they can be
dangerous things. That's because the lawyer is
always ultimately responsible for complying with
the rules and law when creating attorney-client
agreements. So, none of the fee agreement
language in this column is sanctioned by the
D.C. Bar or the D.C. Court of Appeals.

But having said that, let's say you are in a situation where you need to
immediately confirm a new attorney-client relationship before you can
get to your office to draft a complete contract. Maybe you want to secure
the client's business right away or start work immediately, having confirmed you have no conflicts. You and your new client have agreed that
you will be representing the client on a particular matter, you have agreed
on the fee, and you have said that you will prepare a full agreement soon.
First, though Rule 1.5(b) mandates that you provide a writing to the client
laying out three required elements, it is important to note that the rule allows
you some "wiggle room" pursuant to which you may commence work
without a fee agreement and provide the requisite writing soon after:
When the lawyer has not regularly represented the client, the basis
or rate of the fee, the scope of the lawyer's representation, and the
expenses for which the client will be responsible shall be communicated to the client, in writing, before or within a reasonable time after
commencing the representation. (Emphasis added.)
However, you may want to establish the new relationship right away in
writing, even though you did not come prepared with a form or have the
means to print or create an electronically signed agreement because you're
away from your office.
Using your phone, tablet, laptop, or simply a sheet of paper, write
down the date and the client's name and address as though you were
sending the client a letter or email, because that is exactly what you're
going to do.
Next, after writing "Dear (new client's name)," begin your first paragraph
with something like this: "This confirms that we have agreed to have an
attorney-client relationship and that I am going to represent you in the
following matter."
At this point, you are going to do the best job you can detailing the
scope of the representation that you and the client have agreed upon.
For example, if it is a litigation matter, describe the nature of the case so
that it is as clear as possible. Does it include an appeal, or would that be
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WASHINGTON LAWYER

NOVEMBER/DECEMBER 2019

a new matter? Does it include any related but separate pending or
possible litigation?
Next, cover the fee:
We have agreed that you will pay my hourly rate of X dollars. I will
keep track of my time and send invoices monthly with payment due
within 10 days of the invoice date.
Or perhaps this is a flat-fee representation:
We agree that you have paid me a flat fee of X dollars at the outset of
this matter, which is full payment in advance for this representation.
Said funds will be immediately deposited into my law firm trust
account and will be earned in the following manner as this matter
progresses: (Describe the earning mechanism here. It could be tied to
stages of the case or passage of time, or it could be earned when the
matter is completed so long as it complies with In Re Mance, 980 A.2d
1196 (D.C. 2009).)
Then, address the expenses that are likely to be incurred on the client's
behalf in the representation and how they will be handled:
You will be responsible for the following expenses in this matter:
the filing fee of X dollars, the home study fee of X dollars, and if
an investigator is required, a fee in the range of X dollars. I will
advance these expenses, and you will reimburse me as shown
in invoices sent to you.
What you have written thus far complies with Rule 1.5(b) for most
representations. However, since you are going to create a contract for
the client's signature that will contain additional terms, you should close
with something like this:
We agree that the above reflects the essentials of our attorney-client
relationship and that a contract for your signature containing these
and additional terms will be sent to you within the week.
Type or sign your name and address, and email or deliver this letter to
your new client. If you are giving the original to the client, take a photo
or scan of the letter with your phone.
If you need to, you can begin work on the matter immediately. You have
secured the attorney-client relationship and complied with Rule 1.5(b).
But since you have said a more formal document will be forthcoming, it's
advisable to promptly draft it and get it to the client for review and signature once you are back in the office.
And if this is a contingency fee matter, you will need to create a written
agreement for signature to fully comply with Rule 1.5(c), which also
requires a precise statement of the method by which the fee is to be
determined, such as the following language:
ATTORNEY'S FEES. The amount Attorney will receive for attorney's fees
for the legal services to be provided under this agreement will be:
(a) _____ percent of the gross recovery if the recovery is obtained
before the filing of a lawsuit;

Washington Lawyer - November/December 2019

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